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  • Writer's picturePaul Peter Nicolai

Pregnant Workers Fairness Act Protects For Pregnancy-Related Conditions

Updated: Aug 16, 2023

Effective at the end of June, the Pregnant Workers Fairness Act (PWFA) is a new law that closes a gap in coverage under federal law for pregnant and postpartum workers and applicants. It guarantees the affirmative right to receive reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions absent an undue hardship on the employer.


Pregnant or postpartum employees and applicants seeking reasonable accommodations are no longer required to (1) have a pregnancy-related disability or (2) identify other similarly situated employees with accommodations, as was previously required under existing federal laws governing pregnancy-related discrimination.


Before the PWFA, pregnant or postpartum employees and applicants could not obtain reasonable accommodations because of pregnancy, childbirth, or related medical conditions under federal law. Although the Pregnancy Discrimination Act of 1978 (PDA) protects employees from discrimination based on pregnancy, childbirth, or related medical conditions, employees are entitled to reasonable accommodations for such conditions under the PDA only if they can identify other similarly situated employees in the workplace who received accommodations.


The Americans with Disabilities Act of 1990 (ADA) also offers limited protections for pregnant and postpartum employees. Pregnancy is not a disability under the ADA; only some pregnancy-related conditions meet the ADA’s definition of disability. With the enactment of the PWFA, pregnant and postpartum employees and applicants who otherwise were not covered under Title VII, the ADA, or applicable state or local laws, may now seek reasonable accommodations under federal law.


PWFA does not replace Title VII, the ADA, or any other federal, state, or local laws that are more protective of employees and applicants affected by pregnancy, childbirth, or related medical conditions.


PWFA Covered Individuals


PWFA applies to private and public sector employers with 15 or more employees. It protects qualified applicants and employees of covered employers who have a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions who have informed their employer of the condition. An employee’s condition need not be a disability under the ADA to trigger protection under the PWFA.


However, PWFA applies only to qualified applicants or employees who can perform the job’s essential functions with or without reasonable accommodation. Qualified individuals are protected by the new law where: (1) an inability by the individual to perform an essential job function is temporary; (2) the individual can perform the essential job function soon; and (3) the individual can perform the essential job function with reasonable accommodation.


Protections


Covered employers must provide reasonable accommodations to qualified employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s business operations. Remember that the US Supreme Court recently raised the standard for showing undue hardship for religious accommodation.


Covered employers cannot:

  • Require a qualified employee to accept an accommodation without a discussion about the accommodation between the worker and the employer (the interactive process);

  • Deny a job or other employment opportunities to a qualified employee or applicant based on the individual’s need for a reasonable accommodation;

  • Require a qualified employee to take leave, whether paid or unpaid, if a reasonable accommodation would allow the employee to continue working;

  • Retaliate against a qualified employee for requesting or using a reasonable accommodation for a known limitation related to the employee’s pregnancy, childbirth, or related medical condition;

  • Retaliate against an individual for opposing or reporting unlawful discrimination under the PWFA or otherwise participating in a PWFA proceeding (including investigations into violations); or

  • Interfere with any individual’s rights under the PWFA Leave or time off to recover from childbirth;

The PWFA’s interactive process requires covered employers to engage in good-faith discussions with employees requesting reasonable accommodations to address the employee’s individual needs and determine the possible reasonable accommodation(s) that may meet those needs.


The PWFA directs the EEOC to issue regulations to carry out the new law, and these regulations must provide examples of reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions. The EEOC has two years from the PWFA’s enactment to issue these regulations.

Although the EEOC has not yet issued regulations and accompanying examples of reasonable accommodations, the EEOC has highlighted the House Committee on Education and Labor Report on the PWFA’s suggestions and examples of possible reasonable accommodations, including:

  • Seating or modified seating;

  • Closer parking spaces;

  • Appropriately sized uniforms;

  • Additional break time to rest, eat, or use the restroom;

  • Flexible hours;

  • Leave or time off to recover from childbirth;

  • Being excused from strenuous activities and activities that involve exposure to compounds not safe for pregnancy;

  • Job reassignment; and

  • Assistance with manual labor.


Like the ADA, covered employers are not required to provide a reasonable accommodation if the employer can establish that such accommodation would impose an undue hardship on the employer’s business operations. The PWFA adopted the ADA’s definition of undue hardship, any action requiring significant difficulty or expense.


The EEOC will begin accepting charges for conduct giving rise to the charge that occurred on or after 27 June 2023. Protected individuals filing a charge under the PWFA also may seek relief, where applicable, under Title VII or the ADA. However, employees requiring reasonable accommodation for pregnancy, childbirth, or related medical conditions before 27 June 2023 may only seek relief under Title VII or the ADA, if applicable.


PWFA applies only to accommodations and not to claims of discrimination based on pregnancy, childbirth, or related medical conditions. The EEOC will continue enforcing federal laws prohibiting discrimination against workers based on pregnancy, childbirth, or related medical conditions.


Covered employers should review and update their accommodation policies and procedures to ensure compliance with the PWFA and applicable state law. Employers should consider training managers on identifying and addressing requests for accommodation under the PWFA and Title VII and the ADA.

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