Q: Does the federal Pregnant Workers Fairness Act (PWFA) require workplaces to change their accommodation and leave practices in a significant way?
A: Potentially. The PWFA requires covered 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 an “undue hardship.” While 46 states offer some protection to pregnant employees, 26 states already have laws that have requirements that mirror the PWFA. Workplaces that do not already have accommodations for pregnant workers in place must change their accommodation policies to comply with the new law that went into effect on June 27.
The PWFA was enacted to extend extra protections to pregnant workers seeking an accommodation. Title VII, as amended by the Pregnancy Discrimination Act of 1978 (PDA), prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. Meanwhile, the Americans with Disabilities Act of 1990 (ADA) requires employers to provide reasonable accommodations for employees with a condition related to pregnancy only if the condition qualifies as a disability under the ADA. The PWFA brings the two together and requires employers to provide reasonable accommodations for employees on the basis of pregnancy, childbirth, or related medical conditions.
The Act applies generally to all public and private employers with 15 or more employees, and provides protections to qualified employees with a “known limitation” related to the employee’s pregnancy, childbirth, or related medical condition. A qualified employee is one who can perform the essential functions of the position, even if they are unable to do so on a temporary basis, if the employee could perform them in the near future, and if the inability to perform can be reasonably accommodated.
Reasonable accommodations under the Act may include but are not limited to: the ability to sit during their shift; breaks to drink water; assignment of closer parking spaces; flexible hours, appropriately sized uniforms and safety apparel; leave or time off to recover from childbirth; and excusal from activities that are strenuous or involve exposure to compounds not safe for pregnancy. The Act requires arriving at any reasonable accommodation through the interactive process between the employer and employee typically used to determine an appropriate reasonable accommodation under the ADA.
The PWFA requires an employer to make reasonable accommodations to the employee’s known limitations unless the employer can demonstrate that accommodation would impose an undue hardship on the operation of the employer’s business. Consideration of an undue hardship includes the nature and cost to the employer, the impact on the operation of the facility providing the accommodation, the financial resources and size of the employer, and the type of the employer’s operations.
The Act also prohibits denying employment opportunities based on the employee’s need for a reasonable accommodation, requiring an employee to take leave if another reasonable accommodation can be provided, retaliating against an employee for reporting unlawful discrimination under the PWFA or participating in a PWFA proceeding, or interfering with an employee’s rights under the PWFA.
Many states already have laws in effect that provide accommodations for pregnant workers. The PWFA does not limit or invalidate any state or local laws that provide greater or equal protection.
Key Takeaways for Employers
The PWFA in effect extends the ADA to pregnant employees. Employers should ensure that their equal employment opportunity policies are compliant and train their HR departments and supervisors to ensure that the company does not allow discrimination based on pregnancy, childbirth, and related medical conditions. Employers also should review and update accommodation and leave policies to ensure that they comply with the PWFA and designate personnel to engage in the interactive process with employees who request an accommodation for a pregnancy, childbirth, or related reason. Employers also should ensure that their policies and procedures related to pregnant employees are compliant with Title VII of the Civil Rights Act of 1964, the ADA, the Family and Medical Leave Act (FMLA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act (requiring employers to provide reasonable break times for employees to express breast milk for a nursing child for one year after the child’s birth in a private area other than a bathroom).
*Patrick DeSabato is a 2023 summer associate with Troutman Pepper and not admitted to practice law in any jurisdiction.