If you are an employer with 15 or more employees, a new law protecting pregnant workers may impact your company’s compliance requirements. The Pregnant Workers Fairness Act (“PWFA”) expands existing federal law with respect to accommodations for pregnant employees; the PWFA will take effect on June 27, 2023.
The PWFA is intended to fill the gap between Title VII of the Civil Rights act and the Pregnancy Discrimination Act to enable pregnant workers to continue their jobs with reasonable accommodations for conditions related to pregnancy.
Unlike previous requirements that accommodations only be made for pregnant workers who met disability requirements under the Americans with Disabilities Act (the “ADA”), the PWFA requires employers to make “reasonable accommodations” regardless of actual disability, unless the employer can show “undue hardship.” The definitions are the same as under the ADA.
Additionally, employers can only require “leave” as a last resort if other accommodations are not available. Unless the pregnant worker requests leave as an accommodation, or no other accommodations can be made, employers are prohibited from requiring employees to take paid or unpaid leave. Further, employers may not deny opportunities to qualified employees because of their need for accommodation or take adverse action against them because of the accommodations or requests for accommodations.
If the inability to perform the essential functions is for a “temporary period,” pregnant employees need not be able to perform the essential functions of the job (as required by the ADA) to receive an accommodation, The phrase “temporary period” is undefined by the PWFA.
Most states currently impose obligations on employers to provide pregnancy-related accommodations for medical restrictions. The PWFA now sets a “minimum” for what employers are required to provide in response to a request for accommodation. If state law imposes additional requirements, an employer is bound to follow them if they are more generous than the PWFA.
Employers are still required to engage in an “interactive process” (like that required by the ADA) to determine what is reasonable accommodation. The EEOC has suggested accommodations such as “ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.”
Proactively, employers should review and update their existing policies to comply with PWFA, and also review job requirements to determine how they may be temporarily amended for pregnant employees or to consider temporary light duty assignments. Employers should also provide training to managers and supervisors who normally handle such accommodation requests, so they are aware of the new requirements. Additional information is available at the EEOC.gov website or from your employment lawyers at Goosmannlaw.com.
