Earlier this month, it was announced that the Pregnant Workers Fairness Act (PWFA) would go into effect on June 27, 2023. The PWFA requires employers to provide reasonable accommodations to their workers for any known limitation they may have related to pregnancy, childbirth, or related medical conditions. But what exactly do these protections and accommodations look like, and what could you expect as an employee or employer?
Since the announcement, the U.S. Equal Employment Opportunity Commission (EEOC) has laid out a clearer image of what employers and employees can expect once the PWFA goes into effect. Below we've provided a summary of the critical aspects of the PWFA in anticipation of the new law. Also noted, the PWFA requires the EEOC to issue regulations to carry out the law; however, how they plan to enforce those regulations is still unknown.
What Protections Will the PWFA Provide?
The PWFA seeks to fill gaps left by the Pregnancy Discrimination Act of 1978 (PDA) by extending protections similar to those provided under the Americans with Disabilities Act (ADA). While pregnancy discrimination technically is already prohibited by the PDA, which amended Title VII of the Civil Rights Act of 1964-- the PDA requires covered employers to treat those employees who are affected by pregnancy, childbirth, or similar medical conditions the same as other similarly situated employees.
While the ADA of 1990 requires employers to provide accommodation to their employees with certain conditions that are related to pregnancy that qualify as a disability, like gestational diabetes. However, many other common pregnancy-related conditions are not covered by the ADA. Under the PWFA, employers with 15 or more employees will now be required to provide reasonable accommodations for known limitations related to those employees affected by pregnancy, childbirth, and related medical conditions.
Certain standards will apply, however, as also mentioned in the ADA— "unless such [a] covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business." Under the PWFA, it will expressly prohibit employers from the following actions:
- Requiring covered/qualifying employees to accept an accommodation outside what is considered as "reasonable accommodation arrived at through the interactive process."
- Denying covered/qualifying employees "employment opportunities" based on the need to make reasonable accommodations.
- Requiring covered/qualifying employees to take paid or unpaid leave even if another reasonable accommodation can be provided.
- Taking action against covered/qualifying employees requesting reasonable accommodations in the form of conditions or privileges of employment.
- Taking retaliation against employees for reporting or opposing unlawful discrimination under the PWFA.
Which Conditions Are Covered by the PWFA?
While the PWFA protects those individuals who are affected by pregnancy, it does not apply to pregnancy itself but to what they refer to as the "known limitations related to pregnancy, childbirth, or related medical conditions." The law does not specify what forms of conditions will be considered a known limitation other than stating they must be physical or mental conditions that are related to pregnancy, childbirth, or related conditions and that the affected employee must communicate it to the employer.
What Are the Qualifications for Reasonable Accommodations?
Similar to the ADA, the PWFA's definition of reasonable accommodation states that it is an adjustment to a job or work environment that actively enables the employee with a disability an equal opportunity to perform a job successfully. Typically this is determined through engaging in the interactive process between a covered/eligible employee and the employer. However, it is important to note that the PFWA does not specifically define the forms of reasonable accommodations that may be required–the EEOC is to issue the regulations needed to carry out its provisions surrounding examples of reasonable accommodations.
According to the EEOC, these regulations are to be issued within one year of the law's enactment. Until then, the EEOC has provided a guideline as to what ideas of reasonable accommodations will be contemplated by the act. Examples from the House Committee on Education and Labor Report on the PWFA include the following:
- Ability to drink water
- Access to closer parking
- Easy availability to sit
- Flexible working hours
- Appropriately sized uniforms and safety apparel
- Additional break times for eating, resting, and or bathroom use
- Use of leave time to recover post childbirth
- Ability to opt out of strenuous activities
- Ability to opt out of exposure to compounds unsafe for pregnancy
Once the PWFA goes into effect on June 27, 2023, the EEOC will begin to analyze charges regarding accommodations for those affected workers. In lew of the coming changes with the PWFA, employers may want to consider taking action to better prepare themselves and any current or future employees that may fall under the PWFA coverage. If you are a current employee who has been affected by pregnancy or childbirth, or related medical conditions and have any questions regarding the PWFA, you can connect with our attorneys today.