The Pregnant Workers Fairness Act: What Employers Should Know
Date: September 25, 2023
By:
Caitlin E. Tobin
The primary impact of the new law is that under the new PWFA, employers are required to make affirmative efforts to accommodate a pregnant employee, not merely agree not to discriminate.
That is, under the PWFA, covered employers must provide reasonable accommodations to employees and applicants with known physical limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would impose an undue hardship on the employer’s operations. Covered employers include private and public sector employers with more than 15 employees, as well as Congress, federal agencies, employment agencies, and labor organizations.
The PWFA prohibits covered employers from:
- Requiring an employee to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
- Denying a job or other employment opportunity to a qualified employee or applicant based on the person’s need for reasonable accommodations;
- Requiring an employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided that would allow the employee to continue working; and
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA.
Employers’ Expanded Obligations Under the PWFA
The PWFA expands employer obligations under federal law, requiring a greater effort to accommodate pregnant employees. Before the PWFA, a worker seeking accommodations for pregnancy, childbirth, or a related medical condition under federal law could do so through the Pregnancy Discrimination Act of 1978 (“PDA”), which amended Title VII of the Civil Rights Act of 1964, or the Americans with Disabilities Act (“ADA”). Under the PDA, which prevents discrimination on the basis of pregnancy, childbirth, or related medical conditions, a pregnant worker was required to identify a similarly situated employee who received an accommodation in order to obtain an accommodation of their own. Under the ADA, only certain conditions related to pregnancy, not pregnancy itself, qualify as a disability for purposes of obtaining reasonable accommodations.
Under the PWFA’s increased obligation, any covered employee or applicant may simply request reasonable accommodations for pregnancy, childbirth, or a related medical condition. Furthermore, the PWFA mandates that employers engage in an interactive process with a qualified employee to determine a reasonable accommodation. These new provisions give workers with limitations related to pregnancy, childbirth, or related medical conditions streamlined access to accommodation in the workplace.
The EEOC’s Proposed Regulations Provide Guidance for Employers
On August 11, 2023, the EEOC published its proposed regulations for the PWFA. After a sixty-day public comment period, the agency will issue its final regulations. For now, the proposed regulations provide detailed examples of pregnancy-related medical conditions and reasonable accommodations for pregnancy-related conditions that employers may use as a guide.
With respect to reasonable accommodations, the proposed regulations identify four accommodations that the EEOC says “will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship.” Titled “predictable assessments,” these are: (1) allowing an employee to carry and drink water, as needed, in their work area; (2) allowing an employee additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee breaks, as needed, to eat and drink. Other examples of possible reasonable accommodations include, but are not limited to, job restructuring, reassignment, schedule changes, paid or unpaid leave, temporarily suspending one or more essential job functions, providing reserved parking spaces, and allowing telework.
Employers’ Obligations Under State and Local Law
Importantly, many states, the District of Columbia, and some localities also require certain employers to provide reasonable accommodations for pregnant workers. Some state and local laws are even more expansive than the PWFA.
Since July 1, 2020, the Virginia Human Rights Act has required employers with 5 or more employees to provide reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions, including lactation, absent an undue hardship on the employer.
In the District of Columbia, the Protecting Pregnant Workers Fairness Act of 2014 has long required employers to provide reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited because of pregnancy, childbirth, breastfeeding, or a related medical condition, unless such accommodations impose an undue hardship. The law applies to all D.C. employers, regardless of size.
In Maryland, employers with 15 or more employees must make reasonable accommodations for an employee with a disability caused or contributed to by pregnancy, unless doing so would impose an undue hardship on the employer. The Reasonable Accommodations for Disabilities Due to Pregnancy Act, passed in 2013, requires employers to explore all possible means of providing reasonable accommodations for such a disability.
Localities can also mandate that employers provide accommodations for pregnant workers. Although Pennsylvania does not have such a law, both Philadelphia and Pittsburgh have passed ordinances requiring employers to provide reasonable accommodations for the needs of employees due to pregnancy, childbirth, or related medical conditions.
Takeaways
In addition to new obligations under the PWFA, employers must ensure compliance with applicable state and local laws governing the provision of reasonable accommodations to workers with limitations related to pregnancy, childbirth, or related medical conditions. Additionally, employers should be on the lookout for the EEOC’s final PWFA regulations, which the agency is required to issue by December 29, 2023.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.