On Tuesday, June 27, 2023, the Pregnant Workers Fairness Act (PWFA) became law and requires covered employers to provide “reasonable accommodations” to a worker’s known limitations that are related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer an undue hardship.
The PWFA applies to all federal and state employers with over 15 employees and covers workers from their first day of employment and job applicants before they are hired.
The requirements of the PWFA likely sound familiar because the law mirrors the eligibility thresholds and reasonable accommodations requirements of the Americans with Disabilities Act (ADA). The PWFA was enacted to supplement the ADA because courts have long held that pregnancy, in and of itself, is not a disability covered by the ADA. State courts interpreting comparable state disability laws have similarly followed suit.
The PWFA will thus apply when the employee is pregnant but does not require the pregnancy or childbirth-related reasons to qualify as a “serious medical condition,” which is required for coverage under federal and state disability laws. The PWFA will also apply to workers who are experiencing known limitations related to pregnancy and/or childbirth, including conditions such as post-partum depression.
In terms of what reasonable accommodations may be appropriate under the new law, the House Committee on Education and Labor provided several examples of possible reasonable accommodations, including, but not limited to:
- Flexible hours;
- Appropriately-sized uniforms/safety apparel;
- Additional break time;
- Ability to sit down or hydrate;
- Leave or time off to recover from childbirth; and,
- To be excused from strenuous work or activity that may expose the employee to compounds that may not be safe for pregnancy.
Covered employers will be required to provide reasonable accommodations unless they can show that it would cause an “undue hardship” on the employer’s business, which mirrors the requirement in the ADA.
The PWFA prohibits covered employers from:
- Requiring an employee to accept an accommodation without first discussing it with the employee;
- Denying an employment opportunity to a qualified employee or applicant because of that person’s need for a reasonable accommodation;
- Requiring an employee to take leave while another reasonable accommodation may allow the employee to continue working;
- Retaliating against an employee for opposing unlawful discrimination or participating in an investigation regarding alleged illegal discrimination in violation of the PWFA; and,
- Interfering with any individual’s rights under the PWFA.
Like the ADA, the PWFA supplements other federal laws covering pregnancy in the workplace, including the Family Medical Leave Act (FMLA), Title VII of the Civil Rights Act of 1964 (Title VII), and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).
In addition, 30 states have laws requiring employers to provide accommodations to pregnant workers. The PWFA does not supersede those laws and also supplements those laws.
Key Take Aways: Just like the requirements of the ADA, the critical focus here is ensuring that employers engage in the interactive process with covered employees to determine what accommodation or set of accommodations best fits their employee’s needs. The employer cannot force an accommodation of its choice on the employee and must review each case on a case-by-case basis in line with the employee’s specific situation and needs, job requirements, and the employer’s business operations and needs.
The law applies on or after June 27, 2023. The EEOC will analyze charges regarding accommodations for workers affected by covered employees (if the violation occurred after June 27, 2023) and, where applicable, under the ADA and/or Title VII.
About the Author:
Sara H. Jodka (Member, Columbus) is a member of the firm’s labor and employment department and regularly counsels employers and litigates all types of employment-related cases. Sara is the editor of the firm’s All Things HR Blog and the Chair of the Ohio State Bar Association’s Labor and Employment Section Council. She can be reached at 614-744-2943 or SJodka@dickinsonwright.com. Her biography can be viewed here.