What is the Pregnant Workers Fairness Act?
The Pregnant Workers Fairness Act (PWFA) is a bill that went into effect on Tuesday, June 27, 2023 requiring employers to provide reasonable accommodation to employees affected by pregnancy, childbirth, or other related medical conditions.
Prior to this bill, other legislation was unable to fully support and accommodate pregnant employees as to the many medical conditions they may face during their pregnancy. Previously, employees turned to ThePregnancy Discrimination Act (PDA), which states that a pregnant worker must show that an employer accommodated a co-worker “similar in their ability or inability to work” to receive an accommodation. This standard was excessively difficult to meet making it extremely difficult for pregnant employees to request and receive an accommodation during their pregnancy. Other previously utilized law for pregnant employees’ protection was the Americans with Disabilities Act. The ADA required a finding of disability due to pregnancy in order for the employee to receive an accommodation, meaning workers with less-serious pregnancy-related complications were unable to receive accommodation. The Pregnant Workers Fairness Act ensures that pregnant workers will not have to choose between financial security and a healthy pregnancy. Having access to reasonable accommodations will promote the economic health of pregnant workers and their families while fostering healthy pregnancies.
Read the full bill here: H. Rept. 117-27 – PREGNANT WORKERS FAIRNESS ACT
Who does the Bill Protect?
The bill protects employees who need accommodation due to their pregnancy, including those who are currently pregnant, have just given birth, or need accommodations because of medical conditions associated with pregnancy. This includes employees within the public and private sector for a covered employer with at least 15 employees (including Congress, federal employers, employment agencies, labor organizations). While the PWFA only applies to accommodations, the EEOC—Equal Employment Opportunity Commission—enforces existing laws that make it illegal to fire or discriminate workers regarding pregnancy, childbirth, or related medical conditions.
Under the PWA, Employers cannot:
- Require employees to accept an accommodation without discussion/interactive process on both ends;
- Deny a job or employment opportunities to an employee/applicant based on the need for accommodation;
- Require an employee to take leave if an accommodation can be provided to let the employee work;
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA; and/or
- Refuse an accommodation unless the proposed accommodation would cause “undue hardship,” or unreasonable difficulty on the functioning of the business.
How to ask for an Accommodation?
To ask for a workplace accommodation, a pregnant worker would not need a doctor’s note stating that an employee needs an accommodation, but the request should be clear and let the employer know that an accommodation is required due to pregnancy-related issues. The accommodation itself must be discussed openly (called an “interactive process”) with the employer. There could be a specific accommodation or the discussion could involve multiple different options/. If a pregnant employee cannot perform an essential function temporarily, a temporary accommodation is reasonable if the worker can continue that function in the near future. Even if an employer determines that an accommodation is not reasonable, other options can be explored and the employer cannot discriminate or retaliate against a pregnant employee.
Who is Eligible for an Accommodation?
An employee experiencing “known limitations,” or physical/mental conditions related to, or affected by, pregnancy, childbirth, or other medical conditions due to pregnancy are eligible for accommodations.
The PWFA states that “known limitations” do not need to meet the definition of disability under ADA
What are Examples of Reasonable Accommodation for Pregnant Workers?
Examples of accommodations for a pregnant worker may include:
- The ability to sit during work;
- Closer parking;
- Flexible hours/changing a work schedule;
- Additional break time to drink water, eat, rest, tend to lactation needs, or use the restroom;
- Paid leave or time off to recover from childbirth;
- Temporary transfer of physically demanding duties or a temporary transfer to a safer position;
- Remote work/teleworking; or
- Making facilities easier to use.
When will the EEOC Start Accepting Charges Under the PWFA?
As of June 27, 2023, the EEOC began processing charges under the Pregnant Workers Fairness Act if the event occurred on or after June 27, 2023. A worker who needs an accommodation for a situation that occurred before June 27, 2023 may have the right to an accommodation under another federal or state law such as : Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act of 1993, and the PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act).
If you have questions about this new legislation, please contact us at (757) 460-3477 to consult with one of our attorneys.