Let's Talk About the New Law Impacting Accommodations for Pregnant Workers

ABSTRACT: The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. This new law requires employers with at least 15 employees to provide “reasonable accommodations” to employees known limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an “undue hardship”.

The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. The Act is intended to fill gaps between the protections already afforded pregnant workers under the Americans with Disabilities Act of 1990 and the Pregnancy Discrimination Act of 1978.

Under the Pregnancy Discrimination Act, employers are required to treat employees affected by pregnancy, childbirth, or related medical conditions the same as other similarly situated employees. Under the Americans with Disabilities Act, pregnancy itself is not a disability. Rather, a pregnant applicant or employee would be entitled to protection under the Americans with Disabilities Act, only if the pregnant employee had a medical condition that satisfied the definition of a disability under that Act. In other words, in order to be afforded the benefits and protections available under the ADA, the individual would need to establish that she had a physical or mental condition that substantially limited one or more major life activities. As you can imagine, while conditions such as preeclampsia (a serious blood pressure condition that can develop during pregnancy) might qualify as a disability, many other commonly known pregnancy-related limitations were not covered, meaning the employer was not required to provide the pregnant worker a reasonable accommodation for those conditions.

Under the PWFA, this new law requires employers with at least 15 employees to provide “reasonable accommodations” to employees known limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an “undue hardship”. This is what we know so far about a “known limitation”. It must be a “physical or mental condition” that is related to pregnancy, childbirth, or a related condition that the employee has communicated to the employer.

The Act also directs the EEOC to enact regulations within one year that include examples of reasonable accommodations. While we wait for those regulations, the EEOC has already issued Frequently Asked Questions, which provide some examples that may be appropriate for pregnant workers. See EEOC PWFA FAQ. Relying on the House Committee on Education and Labor Report on the PWFA, hyperlinked here, the EEOC notes the following possible accommodations:

• Ability to sit or drink water;
• Receive closer parking;
• Have 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
• To be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

See EEOC PWFA FAQ.

The PWFA also prohibits employers from:

• requiring employees to take leave (paid or unpaid), if another reasonable accommodation can be provided that would allow the employee to keep working;
• denying a job or other employment opportunities to employees based on the need to make reasonable accommodations;
• interfering with an employee’s rights under the Act;
• requiring employees to accept a reasonable accommodation without a discussion (interactive process) about the accommodation with the employee; and
• retaliating against employees for reporting or opposing conduct made unlawful under the Act or due to the employee’s participation in a PWFA proceeding.

Final Points

The EEOC began accepting charges alleging violations of the PWFA on June 27, 2023, the Act’s effective date. Individuals alleging violations of the PWFA may also include alleged violations of the PDA and ADA.  The Act is not retroactive, so any claims for failure to provide a reasonable accommodation that occurred prior to June 27, 2023 cannot be based on the PWFA and will need to satisfy the requirements of either the more narrow ADA or PDA.