We're Back: Pregnant Worker's Fairness Act
It’s been a long time, but we are officially back on the blog trail! We hope we still have some followers out there. What better way to get back into action than to remind everyone that the Pregnant Worker’s Fairness Act (PWFA) takes effect today, June 27, 2023. The PFWA is a new federal law that requires covered employers to provide “reasonable accommodations” to an applicant’s or employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” “Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.
“Reasonable accommodations” are changes to the work environment or the way things are usually done at work. The House Committee on Education and Labor Report on the PWFA provides 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. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer.
Covered employers 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.
In reality, the PWFA doesn’t really change much if you have been complying with the Pregnancy Discrimination Act of 1978 which required employers to essentially treat pregnant employees the same way that they treated other employees who were unable to work for medical reasons having nothing to do with pregnancy. The PWFA protections should sound very similar to what you are currently doing pursuant to the Americans with Disabilities Act. We have always counseled our clients to treat pregnancy like it treats other “disabilities” (i.e., if the employer would grant a reasonable accommodation to a non-pregnant employee because of medical issues or physical restrictions, the employer should grant the same accommodation to pregnant employees). By way of example, if an employer is willing to grant extra breaks to an employee undergoing chemotherapy, it should be willing to grant a similar accommodation to a pregnant employee who needs extra breaks for her pregnancy. If an employer is willing to provide a disabled employee with a leave of absence because of the disability, the employer must offer the same type of leave of absence to a pregnant employee.
Applicants and employees who believe they have been discriminated against because of pregnancy can now file Charges of Discrimination with the Equal Employment Opportunity Commission. The EEOC will start accepting charges under the PWFA on June 27, 2023. For the PWFA to apply, the situation complained about in the charge must have happened on June 27, 2023, or later. A pregnant worker who needs an accommodation before June 27th may, however, have a right to receive an accommodation under another federal or state law.
We recommend that all employers review existing policies regarding pregnancy and reasonable accommodations to ensure compliance with the PWFA.
For questions about how the PWFA might affect your workplace or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that affect your workplace, be sure to subscribe to our blog and follow us on social media.