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On June 27, 2023, the Pregnant Workers Fairness Act (“PWFA”) went into effect, providing pregnant workers with additional protections under federal law. Pursuant to the PWFA, covered employers must provide reasonable accommodations to the known limitations of a qualified employee related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship.
The PWFA defines key terms as follows:
- A “covered employer” is an employer with at least 15 employees;
- A “known limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer, whether or not such condition would be considered a disability under the ADA;
- A “qualified employee” is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position. The PWFA, however, specifies that an employee or applicant shall be considered qualified if (1) any inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated; and
- Reasonable accommodation” and “undue hardship” have the same meaning as under the ADA.
Per the PWFA, covered employers cannot:
- Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer (meaning, the employer and employee must engage in 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 – paid or unpaid – if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfere with any individual’s rights under the PWFA.
The PWFA mandates that the Equal Employment Opportunity Commission (“EEOC”) issue regulations for the implementation of the PWFA. In the meantime, the EEOC has released answers to frequently asked questions, which can be found here, and suggests the following reasonable accommodations for pregnant employees:
- the ability to sit;
- changing food policies to allow a worker to have a water bottle or food;
- providing leave for medical appointments;
- receive closer parking;
- have flexible hours;
- receive appropriately sized uniforms and safety apparel;
- receive additional, longer or more flexible break time to use the bathroom, eat, drink 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.
Effective as of June 27, 2023, the EEOC will be accepting charges related to the PWFA for events that occurred on or after June 27, 2023.
Protections under the PWFA are in addition to any protections offered under the Pregnancy Discrimination Act, the ADA, the Family and Medical Leave Act and the Fair Labor Standards Act.
Employers should review and update any accommodation policies to ensure their compliance with the PWFA, and train supervisors and managers on the new law and how to handle a request for a reasonable accommodation under the PWFA.
Should you have any questions regarding the PWFA Act, contact employment law attorney Bethany Sweeny (firstname.lastname@example.org) or your Kotz Sangster relationship attorney.