The Pregnant Workers Fairness Act (PWFA) becomes effective on June 27, 2023, and enhances the accommodation protections provided by the Americans with Disabilities Act (ADA). Although the PWFA does not override protections already afforded to pregnant workers, it does create the potential for gaps in employers’ current policies that could violate the new law. As a result, employers should pay close attention to their policies, trainings, and how they conduct the interactive process with pregnant workers going forward.
How does the PWFA differ from the ADA?
The ADA already protects pregnant workers whose pregnancy-related conditions rise to the level of a disability. In contrast, the PWFA expands those protections to any worker who has a known limitation related to pregnancy, childbirth, or related medical conditions. In other words, the limitation the pregnant worker is experiencing no longer has to rise to the level of a disability for the pregnant worker to be protected by federal law. In addition, unlike the ADA, the PWFA requires the employer to accommodate a pregnant worker by eliminating the need to perform an essential job function, so long as the limitation is temporary.
The PWFA specifically prohibits employers from engaging in the following conduct:
- Requiring an employee to accept an accommodation without engaging in the interactive process with the pregnant worker;
- Denying an employment opportunity to a qualified pregnant worker (including applicants) based on the worker’s need for a reasonable accommodation;
- Requiring an employee to take leave if another reasonable accommodation can be provided that would allow the employee to remain working;
- Retaliating against an employee for reporting or opposing violations of the PWFA or participating in a PWFA investigation; or
- Interfering with a pregnant worker’s rights under the PWFA in any way.
It is important to note that while the employer may not automatically require the pregnant worker to go on leave as an accommodation, leave may still be acceptable at the election of the pregnant worker. Leave may also be a reasonable accommodation if it is the only accommodation that will keep the worker employed or if it is the only accommodation that can be made without causing an “undue hardship” to the employer. This analysis tracks the ADA, where accommodations that keep the employee working should be considered before accommodations that force an employee off work.
What employers must comply with the PWFA?
The PWFA applies to “covered employers,” which includes private and public sector employers with at least 15 employees, specifically including employment agencies and labor organizations.
What if there are state-level protections for pregnant workers?
The PWFA is meant to set a federal “floor” to the protections afforded to pregnant workers. Several states have enacted laws that require private employers to provide reasonable accommodations to pregnant workers with pregnancy-related medical conditions. These state laws may add to, but not detract from, the protections provided by the PWFA. That said, the states that have enacted such laws have taken varying approaches and the requirements are not uniform. Thus, it is important employers consider the laws of the state where the worker is employed when preparing policies and engaging in the interactive process with a pregnant worker.
What steps should employers take to comply with the PWFA?
Employers should consider auditing their existing policies to ensure they comply with the PWFA by having a reasonable accommodations policy that specifically applies to pregnant workers. Employers should also train their human resources staff on the PWFA’s unique requirements, including how to engage in the interactive process and what types of accommodations that might be reasonable under the PWFA. The House Committee on Education and Labor Report on the PWFA has identified the following non-exhaustive list of potential accommodations for employers to provide to pregnant workers:
- The 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 should use the House Committee’s examples to start the interactive process but should not limit the discussion to the above examples.
Employers should also train their management staff on the requirements and protections of the PWFA, as well as the types of accommodations that might be reasonable under the PWFA and the need to work with the human resources staff in the interactive process because the risk that a manager mishandles a concern of a pregnant worker is now heightened by the PWFA.
Employers should engage in the interactive process with a pregnant worker as soon as it becomes aware that the worker is experiencing a pregnancy-related limitation. Employers will be best served to engage in the interactive process with the goal of finding an accommodation that fits the pregnant worker’s specific limitations. Common mistakes employers make in the accommodation process include failing to recognize when situations or comments from employees trigger the need to start the interactive process. Employers also err sometimes by shortcutting the interactive process by failing to do sufficient research, think outside the box, or explore a broad enough scope of potential accommodations. Finally, employers often underestimate what is required to constitute an undue hardship to the employer.
Employer should also keep in mind that the obligation to accommodate pregnancy-related limitations does not end when the child is born. The PUMP for Nursing Mothers Act (PUMP) continues after birth and requires employers to provide expanded break periods to express milk for certain employees.
The EEOC will begin accepting charges based on PWFA allegations on June 27, 2023. The EEOC has not yet issued any proposed regulations relating to the PWFA, and it is unclear when the EEOC will do so. However, the EEOC has already indicated that systemic investigations relating to pregnancy accommodations are a top priority. Policies that do not incorporate the PWFA’s requirements risk being flagged by the EEOC for a systemic investigation or potential pattern-or-practice litigation. EEOC may also target employers’ policies and practices in this area for disparate impact claims. For additional information regarding what investigators view as “red flags” when investigating a charge of discrimination, click on the following link: EEOC Shares Why Investigators “Red Flag” Charges for Potential Systemic Investigation and Class Litigation.