Beginning on June 27, 2023, employers with 15 or more employees will be required to comply with the Pregnant Workers Fairness Act (PWFA), which President Biden signed into law on December 29, 2022. The PWFA requires covered employers to provide reasonable accommodations to workers with known limitations related to pregnancy, childbirth or related medical conditions unless providing such accommodations would impose an undue hardship on the employer’s business. The Equal Employment Opportunity Commission (EEOC) is tasked with enforcing the PWFA and is required to issue regulations to carry out the law. In the interim, the EEOC has provided a FAQ here.
The protections afforded by the PWFA are in addition to other protections afforded to workers experiencing pregnancy related limitations under the Americans With Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA) the Family Medical Leave Act (FMLA), and Title VII of the Civil Rights Act of 1964 (Title VII). According to the PWFA’s sponsors, however, existing protections under the ADA, PDA, and Title VII were insufficient to ensure pregnant workers receive the accommodations for less serious pregnancy-related impairments, i.e., known limitations, that might not otherwise meet the definition of a qualifying disability under the ADA.
Specifically, the PWFA prohibits employers from:
- Requiring a qualified employee to accept an accommodation not arrived at through the interactive process;
- Denying employment opportunities if the denial is based on the need to make a reasonable accommodation;
- Requiring a qualified employee to take paid or unpaid leave if another reasonable accommodation can be provided;
- Taking adverse action against a qualified employee for requesting or using a reasonable accommodation; and
- Retaliating against any employee who opposes conduct prohibited by the act or who participates in any manner in any proceeding under the act.
The PWFA uses the reasonable accommodation framework set forth in the ADA. Under the PWFA an employer must participate in an interactive process with the affected employee to arrive at reasonable accommodations for their known limitations and may only refuse to provide an accommodation if doing so would impose an undue burden on the business.
The PWFA does not provide examples of the types of reasonable accommodations. However, recent guidance from the EEOC suggests that they can include: 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 advised to familiarize themselves with the requirements of the act, issue updated accommodation policies that comply with the act, and conduct training to ensure management is able to appropriately respond to accommodation requests.