The Pregnant Worker’s Fairness Act (“PWFA”) goes into effect today, June 27, 2023. The PWFA was added to the spending bill and enacted at the end of 2022 without much fanfare. But don’t be fooled by its quiet passage — the PWFA contains important protections for pregnant workers.
Employers are already familiar with the Pregnancy Discrimination Act of 1978 (“PDA”), which prohibits discrimination on the basis of pregnancy. However, the PDA has been criticized for its failure to address accommodations for pregnant workers. The PWFA is intended to close this gap and clarify the framework for handling pregnancy-related accommodations in the workplace, even those that may not qualify as a disability under the Americans with Disabilities Act (“ADA”).
Like the ADA, the PWFA applies to employers who have 15 or more employees for 20 or more calendar weeks in a year. But, unlike the ADA, the PWFA does not disqualify employees who are unable to presently perform the essential functions of their job. Instead, the PWFA creates a grace period for pregnant workers who are temporarily unable to perform essential job functions, if certain criteria are met. Specifically, pregnant workers who are currently unable to perform essential job functions are still qualified for protection under the PWFA if: (1) the 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.
The PWFA covers physical and mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, whether or not such conditions would otherwise qualify as a disability under the ADA. However, the ADA’s definition of “reasonable accommodation” and “undue hardship” apply to the PWFA. Thus, employers are not required to provide an accommodation to a pregnant worker that would impose and undue hardship on the employer – a heavy burden of proof for the employer to carry.
Under the PWFA, an employer cannot:
- Deny reasonable accommodations “to the known limitations” of a pregnant employee unless it would pose an undue hardship on the employer. “Known limitations” are those communicated to the employer.
- Require a pregnant employee to accept an accommodation “other than any reasonable accommodation arrived at through the interactive process.”
- Deny employment opportunities to a pregnant employee because of the need to make reasonable accommodations for that employee.
- Require a pregnant employee to take leave, paid or unpaid, if another reasonable accommodation can be provided.
- Take any adverse action against a pregnant employee because the employee has asked for a pregnancy-related accommodation.
- Retaliate against a pregnant employee for requesting an accommodation, making a complaint, or participating in an investigation regarding the PWFA.
The PWFA carries the same penalties as Title VII, including compensatory and punitive damages, with damage caps depending on the size of the employer, ranging from $50,000 (employers with 15-100 employees) to $300,000 (employers with more than 500 employees). The EEOC will enforce the PWFA and issue guidance for its enforcement within the next two years.
In summary, the PWFA requires employers to make reasonable accommodations for workers experiencing pregnancy, childbirth, or related medical conditions. The types of employers covered by the PWFA and the kinds of penalties imposed mirror Title VII. The PWFA also borrows some terminology from the ADA, including “reasonable accommodation” and “undue burden.” But importantly, the PFA imposes new obligations and requires a unique analysis.
Employers should update their policies and procedures to follow the PWFA. Make sure your reasonable accommodation and interactive dialogue documentation is ready and tailored for the PWFA, which contains important distinctions from the ADA. For example, a pregnant worker may still qualify for PWFA protection even though the worker cannot perform essential job functions for a temporary period. Leave, whether paid or unpaid, is an accommodation of last resort under the PWFA. And a condition may be covered under the PWFA even though it does not qualify as a disability under the ADA.
Remember that your obligations under the PWFA are triggered when a pregnant worker informs you about a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical condition. What accommodation is reasonable will depend on the unique facts of the pregnant worker’s condition and the demands of the job. But generally speaking, examples of reasonable accommodations may include providing additional bathroom breaks, light duty, or a stool to sit on if the worker stands much of the day.
Sarah E. Stula
Foulston Employment Law Attorney