Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (“PWFA”) goes into effect on June 27, 2023. Pregnancy discrimination is already prohibited by the Pregnancy Discrimination Act of 1978 (“PDA”), which amended Title VII of the Civil Rights Act of 1964. The PDA requires covered employers to treat employees affected by pregnancy, childbirth, or related medical conditions the same as other similarly situated employees.

The Americans with Disabilities Act of 1990 (“ADA”) already requires employers to engage with employees in an “interactive process” to discuss the employee’s disability in order to provide reasonable accommodations for a disabled worker. Conditions related to pregnancy, such as pregnancy-related anemia (affecting normal cell growth); pregnancy-related sciatica (affecting musculoskeletal function); and gestational diabetes (affecting endocrine function) likely qualify as a disability.

The ADA, however, requires employers to provide reasonable accommodations when an individual's pregnancy, childbirth, or related medical condition rises to the level of a disability as defined under the ADA. Under the PDA, employers are liable only when they make accommodations for other similarly situated, but nonpregnant workers and do not afford pregnant workers the same accommodations.

The PWFA fills this gap by broadening the accommodations available for pregnant workers. This means that an individual's pregnancy, childbirth, or related medical condition need not rise to a recognized disability warranting reasonable accommodation under the ADA. Under the act, employers with 15 or more employees will be required to provide reasonable accommodation for “the known limitations related to pregnancy, childbirth, and related medical conditions of a qualified employee.” This standard applies—as it does under the ADA—unless such [a] covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business.

Specifically, the PWFA prohibits employers from:

• requiring covered employees to “accept an accommodation other than any reasonable accommodation arrived at through the interactive process”
• denying “employment opportunities” to covered employees “based on the need” to “make reasonable accommodations” requiring covered employees “to take leave, whether paid or unpaid, if another reasonable accommodation can be provided”;
• taking “adverse action in terms, conditions, or privileges of employment against” covered employees requesting reasonable accommodations; and
• retaliating against employees for reporting or opposing unlawful discrimination under the PWFA.

The law’s definition of reasonable accommodation is the same as the definition in the ADA, which defines it as a modification or adjustment to a job or the work environment that enables an employee with a disability an equal opportunity to successfully perform a job.

The EEOC has offered examples of possible reasonable accommodations:

• 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.

The PWFA provides a defense for an employer facing a failure-to-accommodate claim where the employer has provided some reasonable accommodation: the employer must show that it engaged in good faith efforts to identify and make a reasonable accommodation that would provide an equally effective opportunity to that employee and not cause undue hardship for the employer.

The PWFA applies the remedies available in Title VII of the Civil Rights Act for violations. This means that employees and job applicants can bring a private lawsuit against an employer for a violation of the PWFA. The PWFA requires that an employee exhaust all administrative remedies, including filing a charge with the EEOC.

The EEOC will start accepting charges under the PWFA on June 27, 2023. The PWFA is not retroactive; this means that 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 accommodation before June 27th may, however, have a right to receive accommodation under another federal or state law, such as the PDA or the ADA.

The PWFA seeks to ensure that pregnant workers can continue in their jobs with reasonable accommodations for physical or mental conditions related to pregnancy and childbirth. Employers will be required to engage in the interactive process with employees or applicants to determine reasonable accommodation.

Employers should take the following actions in preparation for the PWFA’s effective date:

• review and update accommodation policies to comply with the PWFA and applicable state laws
• train supervisors and the human resources department to understand the requirements of the PWFA and to recognize potential requests for accommodations under the PWFA and
• analyze what accommodations employers could potentially provide to pregnant employees for known issues.