Employers have new accommodation obligations under the federal Pregnant Workers Fairness Act (“PWFA”), which became effective June 27, 2023.
The federal PWFA grants covered employees a right to reasonable accommodations related to pregnancy, childbirth, and related medical conditions, even if an employee’s condition does not qualify as a “disability” under the Americans with Disabilities Act (“ADA”). Covered employers include those with more than 15 employees. Covered employees include those who are pregnant, recovering from childbirth, or have “related conditions.” Employers must adjust their policies, practices, and trainings to fulfill this new law’s mandates and avoid potential liability.
The law broadens the class of employees entitled to accommodation. Absent “undue hardship” to the operations of the business, an employer must provide “reasonable accommodations” where an employee communicates to the employer that she has a physical or mental condition arising out of pregnancy, childbirth, or a related medical condition. As mentioned above, the PWFA requires accommodation regardless of whether the employee’s limitation qualifies as a disability under the Americans with Disabilities Act. Pregnancy itself is not a disability under the ADA; however, an employee’s pregnancy, childbirth, or post-partum period can result in secondary conditions which do qualify as disabilities under the ADA. The PWFA’s purpose is to cover pregnancy-related limitations that do not rise to the level of a disability.
The Equal Employment Opportunity Commission is tasked by with rulemaking on the PWFA, including with providing examples of “reasonable accommodations,” and will issue regulations within a year. The House Committee on Education and Labor Report on the PWFA references some examples of what may be considered “reasonable accommodations” under the act:
- scheduling due to morning sickness or pre-natal appointments,
- job reassignment,
- additional restroom breaks,
- access to water to prevent dehydration,
- assistance with manual labor,
- modified seating,
- part-time work, and
- leave, including time off to recover from delivery.
In addition, the PWFA makes clear that employees are “qualified” and therefore may be entitled to reasonable accommodations, even if that employee cannot perform essential job functions on a temporary basis, with or without accommodation. This is different from the ADA’s standard, in which employers are not required to remove essential job functions in order to reasonably accommodate a disabled employee.
Though the law has already gone into effect, employers may expect further regulatory guidance that may expand what is considered a “reasonable accommodation” under the PWFA.
In addition to these obligations, the PWFA requires employers engage in an interactive process with the employee, prohibits denying a job or employment opportunity to a qualified employee or applicant based on their accommodation request, prohibits requiring an employee take leave when reasonable accommodation would keep them working, and prohibits retaliating against an individual or otherwise interfering with an employee’s PWFA rights.
These employer obligations are, of course, in addition to existing duties related to pregnancy and post-partum employee accommodation and leave under the ADA, Title VII, Family and Medical Leave Act, PUMP Act, and state law. In California, the Pregnancy Disability Leave (“PDL”) law requires employers to provide job-protected leave for up to four months to employees who are disabled by pregnancy, childbirth, or related medical conditions, and to provide reasonable accommodations to those “affected” by such conditions upon the advice of their health care provider, while the PWFA will likely require on-the-job accommodations, job reassignment, and possibly even leave, for such conditions that do not rise to a disability.
Failure to comply with the PWFA could result in legal exposure. The PWFA adopts the same enforcement mechanisms as Title VII and can subject employers to an EEOC investigation and civil penalties for violations. The EEOC has begun accepting charges for violations of the law as of June 27th.
Employers should update their policies and procedures for accommodation requests and train management and human resources to respond to accommodation requests from employees who are pregnant, recovering from child birth, or have “related conditions.”
Employers with questions regarding the PWFA may contact the authors of this update or their usual employment counsel.
Reprinted with permission from AALRR.