Effective June 27, 2023, covered employers with fifteen (15) or more employees will be required to provide “reasonable accommodations” to “qualified employees” with “known limitations related to pregnancy, childbirth or related medical conditions” unless such accommodation would cause the employer an “undue hardship”. This law is applicable only to accommodations, and does not replace federal, state or local laws that provide greater protections for workers affected by pregnancy, childbirth or related medical conditions.
This article will detail the accommodations covered employers must make and what is prohibited, and review additional information about existing laws applicable to pregnant workers.
The term “known limitation” is defined under the PWFA as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the employer whether or not such condition meets the definition of disability” under the Americans with Disabilities Act (ADA). Where “known limitation” is not confined to the definition of disability under the ADA, it indicates that a more expansive range of conditions is intended, and therefore a lower burden for the employee to establish a need for reasonable accommodation under the law. The PWFA requires the Equal Employment Opportunity Commission (EEOC) to issue regulations within one year of enactment providing examples of reasonable accommodations and addressing known limitations related to pregnancy, childbirth, or related medical conditions.
Additionally, while the ADA requires that a qualified employee must be able to meet the essential functions of a position with or without a reasonable accommodation, under the PWFA an employee may be considered to be qualified even if she cannot perform an essential function so long as the inability is temporary, the essential function can be performed in the near future, and the inability to perform can be reasonably accommodated.
Similar to the ADA, under the PWFA, employers are required to provide a reasonable accommodation to qualified employees unless such accommodation constitutes an “undue hardship”. The definition and construction of undue hardship is consistent with the ADA and includes an action which requires significant difficulty or expense.
What are some examples of reasonable accommodations for pregnant workers under the Act?
The EEOC has published a list of reasonable accommodations proposed by the House Committee on Education and Labor including:
- The ability to sit or drink water;
- Closer parking;
- 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.
What is Prohibited Under the PWFA?
The PWFA prohibits covered employers from the following:
- Requiring an employee to accept an accommodation without engaging in a discussion between employer and employee;
- Denying a job to an applicant or other employment opportunity to an employee who is qualified for such position/opportunity on the basis of that individual’s need for a reasonable accommodation;
- Requiring an employee to take leave if another reasonable accommodation could be provided to enable the employee to keep working;
- Retaliating against an individual for reporting or objecting to unlawful discrimination under the PWFA or for participating in a PWFA proceeding; and
- Interfering with an individual’s rights under the PWFA.
Covered employers include private and public sector employers with fifteen (15) or more employees, Congress, Federal agencies, employment agencies, and labor organizations.
Other Laws Applicable to Pregnant Workers
Title VII of the Civil Rights Act of 1964 (amended by the Pregnancy Discrimination Act) prohibits discrimination in employment on the basis of pregnancy, birth and related medical conditions. The Americans with Disabilities Act (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability. Under the ADA, pregnancy by itself is not a basis for accommodation as it is not considered to be a disability. However, a covered employee who experiences an impairment related to their pregnancy rising to the level of a disability as defined under the ADA may qualify for a reasonable accommodation.
The Family and Medical Leave Act (FMLA) provides for unpaid, job-protected leave for qualified family and medical reasons including incapacity related to pregnancy, childbirth and child bonding. Many states also provide protections for pregnant workers through state parental leave laws as well as state-based paid family and medical leave programs.
More recently, the PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act), signed into law by President Biden on December 29, 2022, expanded workplace protections to nursing employees not previously covered by the Break Time for Nursing Mother’s Act enacted in 2010 and enforced by the Department of Labor. Under the PUMP Act, nearly all FLSA-covered employees have the right to take reasonable break time to express milk during the first year of their child’s life. Under the Act, employers must provide a private space (other than a bathroom) free from co-worker and public intrusion, and shielded from view in which employees may express breast milk. These same protections apply to teleworkers as well, who must be free from observation by any employer-provided or employer-mandated video system including web cameras used for security and/or virtual conferencing.
Employers should review their accommodation policies and procedures to ensure compliance with the law, especially when it comes to conducting the interactive process with their employees who are seeking an accommodation under the PWFA.
Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.