What is the Pregnant Workers Fairness Act?
The Pregnant Workers Fairness Act (PWFA) is a new civil rights law designed to ensure pregnant and postpartum workers receive appropriate accommodations without facing discrimination or retaliation in the workplace.
The PWFA guarantees workers the affirmative right to receive reasonable accommodations for known limitations stemming from pregnancy, childbirth, and related medical conditions. This is limited when the requested accommodations would pose an “undue hardship” to the employer (similar to the process for workers with disabilities). The law ensures that millions of pregnant workers and those who have recently given birth can protect their health without risking their paychecks.
Who is Protected Under this Act?
The PWFA protects employees and applicants of “covered employers” with known limitations concerning pregnancy, childbirth, or related medical conditions. “Covered Employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations. By guaranteeing a right to reasonable accommodations for pregnancy, childbirth, and related medical conditions, the PWFA closes a gap in federal law that left pregnant and postpartum workers without remedy if they needed accommodations to prevent health complications and keep working.
What is Prohibited Under this Act?
Under the PWFA, Covered Employers cannot:
- Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
- Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfere with any individual’s rights under the PWFA.
When Will It Go Into Effect?
The PWFA goes into effect on June 27, 2023. The Equal Employment Opportunity Commission (EEOC) is required to issue regulations to carry out the law. The EEOC will issue a proposed version of the PWFA regulations so the public can give their input and offer comments before the regulations become final. We recommend periodically checking the EEOC website for more information concerning the comment period.
What Does the Act Mean by Reasonable Accommodations?
A reasonable accommodation is generally defined as an adjustment made in a system to accommodate or make fair the same system for an individual based on a proven need. In the case of the PWFA, those accommodations would be tailored to ensure the best work environment for the protected individuals, in this case that would mean pregnant and postpartum workers.
The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations including the 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. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer.
Additionally, under the PWFA, an employer must have a good-faith conversation with a worker seeking reasonable accommodations about the worker’s needs and reasonable accommodations that could meet those needs. This is called the “interactive process.” The interactive process can occur in person, by phone, over email, or in other ways. For example, Human Resources might have a meeting with a pregnant worker requesting accommodations to discuss what job duties the employee can safely do, or talk about available positions that the employee could temporarily transfer to. A worker does not need to use any “magic words,” or mention the “Pregnant Workers Fairness Act” or the phrase “reasonable accommodation,” in order to start this process. The employer is required to respond to the request and engage in the interactive process promptly.
How will this Affect Your Business?
Going forward, under the PWFA as it currently stands, an employer cannot force a worker to accept an accommodation that the worker does not want or need, or force a worker to take leave, whether paid or unpaid. For example, an employer cannot force a pregnant employee to accept a reduced work schedule or stop traveling for work, if the employee does not want or need those changes. To ensure continued compliance with applicable law. You will need to ensure that, should any of your employees fall within the protected class, you comply with the newly applicable law.
This means having good faith conversations with your employee upon their seeking of accommodations, ensuring that the accommodations are met in a manner that is agreeable to your employee, and do not cause an undue burden upon you as the employer or the workplace. Remember that the PWFA applies to private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations. If your business does not fall into one of these categories, the PWFA may not apply to your business. We encourage you to familiarize yourself with the intricacies of the PWFA. Additionally, following that, if you have any issues with the law, how it stands or comments on how it could be improved, we encourage you to keep an eye on the EEOC website for updates regarding a comment period. All comments will be reviewed and considered for inclusion in the PWFA prior to its final publication and enactment.
What Are Some Other Considerations?
The PWFA applies only to accommodations. Existing laws that the EEOC enforces make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions. Other laws that apply to workers affected by a pregnancy, childbirth, or related medical conditions, include:
- Title VII (enforced by the EEOC), which:
- Protects an employee from discrimination based on pregnancy, childbirth, or related medical conditions; and
- Requires covered employers to treat a worker affected by a pregnancy, childbirth, or related medical conditions the same as other workers similar in their ability or inability to work;
- The ADA (enforced by the EEOC), which:
- Protects an employee from discrimination based on disability; and
- Requires covered employers to provide reasonable accommodations to a person with a disability if the reasonable accommodation would not cause an undue hardship for the employer.
- While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be disabilities under the law.
- The Family and Medical Leave Act of 1993 (enforced by the U.S. Department of Labor), which provides covered employees with unpaid, job-protected leave for certain family and medical reasons; and
- The PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act) (enforced by the U.S. Department of Labor) broadens workplace protections for employees to express breast milk at work.
*This blog post is for informational purposes only and does not constitute legal, financial, or medical advice or the forging of an attorney-client relationship. Please retain the services of an attorney to receive legal advice on how the law applies to your business.