New Requirements for Employers Under Pregnant Workers Fairness Act

By Michael W. Lewis

August 3, 2023

Effective on June 27, 2023, the Pregnant Workers Fairness Act (PWFA) was signed into law by President Biden on December 29, 2022, and requires covered employers to prove “reasonable accommodations” to a worker’s known limitations associated with pregnancy, childbirth, or related medical conditions. “Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations. “Reasonable accommodations” are necessary and appropriate modifications and adjustments where needed to ensure to persons with disabilities are not discriminated against in the workplace. According to an October 2022 study, the PWFA has the potential to protect nearly 2.8 million pregnant workers each year from the choice between keeping their livelihoods or having a safe and healthy pregnancy.

The PWFA does have a limited scope, with several caveats to consider. First, the PWFA applies only to accommodations, as there are existing laws in place that the Equal Employment Opportunity Commission (EEOC) enforces making it illegal to terminate employment or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions. Second, the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. In other words, the PWFA creates a regulatory floor that states must adhere to, but allows for states to adopt stricter standards should they choose to. Third, the requirement of covered employers to provide these “reasonable accommodations” is conditioned on the accommodation not causing an “undue hardship” to the employer. Accommodations constitute an “undue hardship,” and are thus unreasonable if they create a significant difficulty or expense for the employer.

The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations that would not create an “undue burden,” which include but are not limited to, closer parking, flexible hours, appropriately sized uniforms and safety apparel, additional break time, and removal from activities that are too strenuous or expose pregnant individuals to unsafe environments.

The PWFA will work in tandem with other laws that apply to workers affected by pregnancy, childbirth, or related medical conditions, including Title VII and the ADA, both of which are enforced by the EEOC. Title VII requires covered employers to treat a worker affected by pregnancy, childbirth, or related medical conditions the same as other workers in their ability or inability to work. The ADA protects an employee from discrimination based on pregnancy-related conditions that may be disabilities under the law, including pelvic inflammation that substantially limits the ability to walk, or pregnancy-related carpal tunnel syndrome affecting the ability to lift or perform manual tasks. Additionally, the U.S. Department of Labor enforces the Family and Medical Leave Act of 1993, which provides covered employees with unpaid, job-protected leave for certain family and medical reasons, and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which broadens workplace protections for employees to express breast milk at work.

The PWFA also spells out prohibited conduct by covered employers. Of note, covered employers cannot require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer, retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA, interfere with any individual rights under the PWFA, or require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working.

The EEOC started accepting charges under the PWFA on June 27, 2023. For the PWFA to apply, the situation complained about in the charge must have happened on June 27, 2023, or later. Until the effective date, the EEOC accepted and processed complaints pursuant to Title VII and/or the ADA involving a lack of accommodation regarding pregnancy, childbirth, or related medical conditions. After the effective date, the EEOC will analyze charges regarding these accommodations under the PWFA and only utilize Title VII or the ADA where applicable.

Should you have any questions about the PWFA, or any employment law-related questions, please do not hesitate to contact Michael W. Lewis or any of the attorneys in the Appel, Yost & Zee Education Law Group.