The Pregnancy Workers Fairness Act (PWFA), effective June 27, 2023, requires employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer undue hardship. While there are many other federal and state employment laws that address accommodations for pregnant employees, the new PWFA takes many of these protections a step further and is tailored specifically to matters related to pregnancy.
Who is covered by the PWFA?
The PWFA applies to private and public sector employers that have more than fifteen employees.
The PWFA covers a “qualified employee” or a “qualified applicant.” An employee or applicant is qualified if he or she can perform the “essential functions,” or fundamental duties, of the job with or without reasonable accommodations. If the employee cannot perform the essential functions of the job with or without a reasonable accommodation, the employee can still be deemed qualified as long as the inability is “temporary;” the employee could perform the functions “in the near future;” and the inability to perform the essential functions can be reasonably accommodated.
What does the PWFA do?
The PWFA prohibits a covered entity from the following:
- Requiring a qualified employee to accept an accommodation, other than a reasonable accommodation;
- Denying employment based on the need of the covered entity to make the reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
- Requiring a qualified employee to take a leave if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
- Taking adverse actions in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions;
- Discriminating against an employee for opposing unlawful discrimination under the PWFA or participating in a proceeding under the PWFA; and
- Coercing individuals in the exercise of their rights under the PWFA.
In addition, the PWFA provides remedies for individuals whose rights are violated under the PWFA.
What is a “known limitation”?
Under the PWFA, a “known limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the covered entity whether or not such conditions meet the definition of disability specified under the Americans with Disabilities Act (ADA).
What is “pregnancy, childbirth, or related medical conditions”?
“Pregnancy, childbirth, or related medical conditions” includes but is not limited to current pregnancy, past pregnancy, potential or intended pregnancy, labor, and childbirth, including cesarean section or vaginal birth. Therefore, the scope of covered conditions is extremely broad.
What is “undue hardship”?
The PWFA follows the ADA’s definition of “undue hardship” which means significant difficulty or expense for the operation of the employer. If providing a reasonable accommodation would cause the employer undue hardship, then generally the employer does not have to provide the accommodation.
How is the PWFA different from other pregnancy protection laws?
Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including pregnancy discrimination, and the ADA prohibits discrimination based on disability, including disability related to a pregnancy. In contrast, the PWFA applies only to accommodations and expands the duties on employers to make reasonable accommodations for pregnancy related conditions.
The Family Medical Leave Act (FMLA) is enforced by the Department of Labor and provides covered employees with unpaid, job-protected leave. The Providing Urgent Maternal Protections for Nursing Mother Act (PUMP Act), also enforced by the Department of Labor, broadens workplace protections for employees to express breast milk at work.
In some cases, workers affected by pregnancy, childbirth, or related medical conditions may also be entitled to receive an accommodation under Title VII or the ADA, both of which are also enforced by the EEOC. Employers will be required to conduct an analysis of the specific situation under all of these laws.
What should employers do?
Once the employer knows of a limitation of the employee, the employer should engage in the “interactive process” with the applicant or employee. Simply put, the “interactive process” means the employer and employee communicate about the known limitation and the adjustment or change needed at work. If an employee requests an accommodation, the employer should respond promptly.
Employer should train supervisors about the PWFA, particularly “first level” supervisors who are likely to receive accommodation requests. Employees do not need to use specific words to request an accommodation.
Additionally, an employee may need different accommodations as the pregnancy progresses, the employee recovers from childbirth, or the related medical condition improves or gets worse.
Employers should be aware of these additional legal protections for pregnancy related conditions and should conduct a tailored review of the situation—it is more complex than the “default” ADA analysis for other medical conditions.
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