A federal law recently went into effect that requires certain employers to provide reasonable accommodations to pregnant employees and applicants. The Pregnant Workers Fairness Act (PWFA) is a new law that requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an “undue hardship” on the operation of the business. PWFA applies only to accommodations and does not affect existing pregnancy discrimination laws or replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.
“Reasonable accommodations” under PWFA have been defined as changes to the work environment or the way things are usually done at work. The House Committee on Education and Labor Report on the PWFA identified examples of possible reasonable accommodations for affected workers to include the ability to sit down or receive a drink of 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. Employers must implement these reasonable accommodations unless doing so would create an “undue hardship” defined is a “significant difficulty or expense for the employer.”
“Covered employers” include private and public sector employers with at least 15 employees, Congress, federal and state agencies, employment agencies, and labor organizations.
The Equal Employment Opportunity Commission (EEOC) is required to issue regulations to carry out the new law and has begun accepting complaints under the PWFA as of June 27, 2023. This law is not retroactive, however, so any alleged violation of PWFA must have occurred on or after June 27, 2023. Notably, the EEOC will continue to analyze complaints occurring prior to June 27, 2023, regarding accommodations for workers affected by pregnancy, childbirth, or related medical conditions under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act, as appropriate.
In implementing PWFA, employers must avoid:
- Requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer (interactive process);
- Denying a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
- Requiring an employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfering with any individual’s rights under the PWFA.
Aleshia M. White is a senior employment attorney at Berliner Cohen, LLP handling wage and hour claims, discrimination, harassment and retaliation claims and who provides advice and counsel and conducts harassment and DEI training. If you have questions, please contact Aleshia at 408.286.5800 or firstname.lastname@example.org.