Pregnant Workers Fairness Act
On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) went into effect. Intended to bridge the gap between other pregnancy protections and the ADA, the PWFA requires public and private employers with 15 or more employees to provide “reasonable accommodations” to an employee or applicant’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an “undue hardship,” which can be defined as a significant difficulty or expense for the employer.
The EEOC is required to issue regulations to carry out the law. The EEOC will issue a proposed version of the PWFA regulations. What You Should Know About the Pregnant Workers Fairness Act | U.S. Equal Employment Opportunity Commission (eeoc.gov)
The PWFA expands on the need to provide accommodations to a pregnant applicant or employee. It remains illegal to terminate, harass, and/or discriminate against pregnant applicants and employees on the basis of their pregnancy.
Going forward, employers will need to engage in the interactive process to address an applicant or employee’s known limitations related to pregnancy, childbirth, or related medical conditions to determine what changes to the work environment are needed to enable the applicant or employee to work, unless the accommodation will cause an “undue hardship” to the employer.
The House Committee on Education and Labor Report on the PWFA provided several examples of possible reasonable accommodations including:
- 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.
In addition, the PWFA directs that an employer cannot:
- Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
- Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfere with any individual’s rights under the PWFA.
A second expansion under the bill was the PUMP for Nursing Mothers Act. FLSA Protections to Pump at Work | U.S. Department of Labor (dol.gov) It requires employers to give reasonable break time in a private area other than the bathroom for employees to pump breast milk for their nursing children up to one year after birth.
Qualified employers need to be prepared to address the needs of pregnant applicants and employees. Employers should be ready to thoughtfully engage in the interactive process and to develop strategies for adjustments to the work environment to ensure that pregnant employees can remain in the workforce. If you have any questions or would like to discuss this development in more detail, please reach out to a member of our Employment Law team.