JT Washington
The U.S. Equal Employment Opportunity Commission (the “EEOC”) issued a final regulation to implement the Pregnant Workers Fairness Act (“PWFA”). The regulation goes into effect on June 18, 2024. The PWFA initially went into effect on June 27, 2023. A primary objective of the law is to allow pregnant employees to continue working as long as they are capable, benefitting both the employees and their employers. The PWFA requires covered employers to make affirmative efforts to provide “reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee” unless the accommodation would impose an undue hardship. “Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations. The PWFA also prohibits employers from:
- Requiring an employee to accept an accommodation without a discussion between the employee and the employer about the accommodation;
- Denying employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Requiring an employee to take leave, paid or unpaid, if another reasonable accommodation can be provided to the employee;
- Taking adverse action in terms, conditions, or privileges of employment against an employee because the employee requested or used a reasonable accommodation;
- Retaliating against an employee who opposed any unlawful act or practice under the PWFA or because an employee made a charge, testified, assisted, or participated in an investigation, proceeding, or hearing under the PWFA; or
- Coercing, intimidating, threatening, or interfering with any individual’s rights under the PWFA.
These new provisions, similar to the Americans with Disabilities Act (“ADA”), simplify access to workplace accommodation for applicants and employees with known limitations related to pregnancy, childbirth, or related medical conditions. Employers should understand that while the PWFA is similar to the ADA, they have some differences. Both laws define a “qualified employee” as someone who can perform the essential functions of their job, with or without reasonable accommodation. However, the PWFA allows an employee or applicant to be considered a “qualified employee” even if they are temporarily unable to perform essential functions, as long as the essential function could be performed in the near future and the inability can be accommodated. Employers should keep the PWFA’s definition of a qualified employee in mind when responding to requests for accommodation.
Employers must engage in the interactive process with qualified employees to identify a reasonable accommodation that will meet the employee’s needs. The interactive process can be an informal discussion where the employer and employee discuss various solutions. Employers that do not engage in the interactive process or do not provide reasonable accommodations in a reasonable time period, expose themselves to claims that they interfered with the employee’s rights under the PWFA and/or denied the employee a reasonable accommodation. Although employers should consider an employee’s requested accommodation, employers are not obligated to provide employees with their preferred accommodation. Employers can offer alternative accommodations that protect employee’s health and safety without causing undue hardship.
Reasonable accommodations will vary based on the employee’s needs and job duties. Examples of reasonable accommodations include, but are not limited to:
- Revise break schedules;
- Provide flexible hours to attend doctor appointments;
- Provide different seating or modifying equipment;
- Provide an area for an employee to express breast milk;
- Authorize light duty;
- Transfer an employee temporarily to a less strenuous or hazardous position;
- Restructure a position;
- Provide a modified work schedule;
- Assist with lifting; and
- Allow an employee to keep water at their workstation.
The PWFA is one of several laws prohibiting pregnancy discrimination. Other laws that may apply to pregnant workers include Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (“PDA”); the Americans with Disabilities Act (“ADA”); and the Family and Medical Leave Act (“FMLA”). While the PWFA only applies to accommodations, employers should understand that the existing laws, such as the PDA, make it illegal for an employer to refuse to hire, fire, demote, or otherwise discriminate against workers based on pregnancy, childbirth, or related medical conditions. The PDA requires that employers treat women affected by pregnancy or related medical conditions the same as non-pregnant applicants or employees who are similar in their ability or inability to work. Similarly, the ADA prohibits employment discrimination based on disability and requires covered employers to provide reasonable accommodations to the known limitations of otherwise qualified employees and applicants. Under the ADA, pregnancy itself is not considered a disability. However, impairments related to pregnancy that substantially limit one or more major life activities can be considered disabilities.
Employers must remember that state and local law might require more extensive protections for pregnant workers than those set by federal law. The PWFA provides the minimum standards for compliance and does not preempt applicable state or local law. Thus, employers should confirm what additional obligations they may have to their employees under applicable state or local law. For instance, under Nevada’s Pregnant Workers’ Fairness Act, employers must notify employees that they have the right to be free from discriminatory or unlawful employment practices under Nevada’s PWFA within ten days after the employee notifies her immediate supervisor that the employee is pregnant. NRS. 613.4377. Employers who fail to comply with these laws may be subject to legal action.
The PWFA is enforced like other federal employment discrimination laws. Claims against private employers are initiated by filing a charge of discrimination with the EEOC or state equivalent. Claims under the PWFA can lead to a lawsuit and damages.
Employers should modify their policies and practices to ensure they comply with the Pregnant Workers Fairness Act and applicable state and local laws governing the provision of reasonable accommodations to employees with limitations related to pregnancy, childbirth, or related medical conditions.
