The Pregnant Workers Fairness Act Provides New Protections for Pregnant Employees
Contact Clara (C.B.) Burns, Charles C. High, Jr., Gilbert L. Sanchez, Isaac J. Blanco and Metzeri A. Camacho -
June 19, 2023
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On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (“PWFA”). The PWFA requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. The PWFA goes into effect on June 27, 2023 and only applies to incidents that occur on or after that date.
Pregnancy discrimination is already prohibited by the Pregnancy Discrimination Act of 1978 (“PDA”). Under the PDA, employers are required 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”) additionally requires employers to provide reasonable accommodations to employees with certain conditions related to pregnancy that qualify as a disability. The PWFA fills the gaps between these laws by providing protections to employees and applicants who have known limitations related to pregnancy, childbirth, or related medical conditions regardless of whether the limitations meet the ADA’s disability definition.
Under the PWFA, public and private sector employers with at least 15 employees, must provide reasonable accommodations to “qualified employees” for “known limitations” due to pregnancy, childbirth, or related medical conditions if the accommodation will not cause the employer undue hardship. “Qualified employee” means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the job. In some cases, however, an employee or applicant who cannot perform the essential job functions will still be considered qualified if: (i) the inability to perform the essential job functions is temporary; (ii) the essential functions could be performed in the near future; and (iii) the inability to perform the essential functions can be reasonably accommodated.
“Known limitation” means any physical or mental condition related to pregnancy, childbirth, or related medical conditions that the employee (or employee’s representative) has communicated to the employer, whether or not such condition meets the definition of disability under the ADA. The terms “reasonable accommodations” and “undue hardship” have the same definitions as under the ADA.
Additionally, the PWFA makes it an unlawful employment practice for an employer to:
Pregnancy discrimination is already prohibited by the Pregnancy Discrimination Act of 1978 (“PDA”). Under the PDA, employers are required 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”) additionally requires employers to provide reasonable accommodations to employees with certain conditions related to pregnancy that qualify as a disability. The PWFA fills the gaps between these laws by providing protections to employees and applicants who have known limitations related to pregnancy, childbirth, or related medical conditions regardless of whether the limitations meet the ADA’s disability definition.
Under the PWFA, public and private sector employers with at least 15 employees, must provide reasonable accommodations to “qualified employees” for “known limitations” due to pregnancy, childbirth, or related medical conditions if the accommodation will not cause the employer undue hardship. “Qualified employee” means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the job. In some cases, however, an employee or applicant who cannot perform the essential job functions will still be considered qualified if: (i) the inability to perform the essential job functions is temporary; (ii) the essential functions could be performed in the near future; and (iii) the inability to perform the essential functions can be reasonably accommodated.
“Known limitation” means any physical or mental condition related to pregnancy, childbirth, or related medical conditions that the employee (or employee’s representative) has communicated to the employer, whether or not such condition meets the definition of disability under the ADA. The terms “reasonable accommodations” and “undue hardship” have the same definitions as under the ADA.
Additionally, the PWFA makes it an unlawful employment practice for an employer to:
- require a qualified employee to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;
- deny employment opportunities to a qualified employee based on the applicant’s need for reasonable accommodations;
- require a qualified employee to take paid or unpaid leave if another reasonable accommodation could be provided which would allow the employee to keep working; and
- retaliate against a qualified employee for requesting or using a reasonable accommodation under the PWFA.
The House Committee on Education and Labor has issued a report on the PWFA which highlights examples of what can constitute a reasonable accommodation. These examples include, but are not limited to, the following:
- providing seating;
- providing water;
- additional break time to use the restroom, eat, or rest;
- closer parking;
- excusing the worker from strenuous activity; and
- time off to recover from delivery.
As mentioned above, the PWFA goes into effect on June 27, 2023 at which point the EEOC will begin accepting charges of discrimination based on any violations that accrued on or after that date. In the near future, the EEOC will issue proposed regulations and the public will get the opportunity to provide comments before final regulations are issued.
Please feel free to contact Kemp Smith’s Labor and Employment Department if you need guidance and assistance concerning the PWFA.
Please feel free to contact Kemp Smith’s Labor and Employment Department if you need guidance and assistance concerning the PWFA.
