Dana Dobbins
By Dana Dobbins
Question: Do employees have to be employed for 12 months or work 1,250 hours to qualify for the Pregnant Workers Fairness Act (PWFA), or do they qualify as soon as they begin employment?
Answer: No, employees do not need to be employed for 12 months or work a minimum threshold of hours before they can qualify for protections and accommodations under the federal Pregnant Workers Fairness Act (PWFA) or the Colorado PWFA. Employees qualify immediately (provided that the employer is a covered entity). In fact, by its terms, the PWFA applies even to job applicants. This is also true for Colorado’s PWFA.1
Under the PWFA, employers must make reasonable accommodations for the known limitations of an employee or applicant, unless the accommodation would cause an “undue hardship”—i.e., significant difficulty or expense.
Further, employers may not:
- Require an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
- Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Punish or retaliate against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation);
- Coerce individuals who are exercising their rights or helping others exercise their rights under the PWFA.
Accommodations under the PWFA can include, but are not limited to, more frequent, longer, or flexible break periods (including breaks for food, water, and restroom use); acquisition or modification of equipment, uniforms, or seating; limitations on lifting; temporary transfer to a less strenuous or hazardous position (if available), with return to the current position after pregnancy; light duty (if available); remote work; a modified work schedule; or leave, including for medical appointments and to recover from childbirth.
Thus, unpaid leave can be an accommodation under the PWFA if it does not cause undue hardship, even for employees who have not met the threshold of working 1,250 hours over 12 months (which is the requirement for FMLA leave). Note, however, that the PWFA bars an employer from requiring an employee to take leave where another reasonable accommodation exists.
In addition to the PWFA and the FMLA (where applicable), employers should be mindful of their obligations and employee protections under the ADA, Title VII, the PUMP Act and any relevant state laws (for example, Colorado’s FAMLI leave program).
1 This article addresses the federal PWFA unless otherwise noted.
