Q: Our company became aware of a new federal law, the Pregnant Workers Fairness Act. What are the key provisions of the law?
A: The Pregnant Workers Fairness Act (“the Act”) became effective on June 27, 2023 and requires employers of 15 or more employees to provide “reasonable accommodations” to workers’ known limitations (e.g. physical or mental condition) related to pregnancy, childbirth, or related medical conditions unless the accommodation causes “under hardship” on the employers business operations. The definitions of reasonable accommodation and undue hardship are the same as provided in the American with Disabilities Act (“ADA”). Reasonable accommodations are modifications to a job, the work environment or the way things usually are done. An undue hardship is any action requiring significant difficulty or expense on the employer’s operations in light of such facts as its size, financial resources and structure of tits business. The Act does not affect existing federal protections for pregnant workers. Rather, the Act fills a gap by extending protections to qualified employees beyond the Pregnancy Discrimination Act of 1978 (“PDA”) and the ADA. In other words, the Act protects certain pregnant workers that would not otherwise be protected by the PDA or the ADA.
In addition to requiring employers to provide reasonable accommodations for a qualified pregnant worker, the Act expressly prohibits employers from engaging in such conduct as:
- Requiring a qualified employee to accept an accommodation without a discussion between the employer and the employee about the accommodation arrived at through the ADA’s “interactive process”;
- Denying employment opportunities to a qualified employee to avoid providing reasonable accommodations;
- Requiring a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided that would allow the employee to continue working;
- Retaliating against an employee because the employee has requested or used a reasonable accommodation; and
- Retaliating against an employee for opposing conduct prohibited by the Act, or for participating in a proceeding (such as an investigation) under the Act.
Companies should review and update policies to ensure compliance with the Act and applicable state laws, and train their human resources and management staff on reasonable accommodations and key provision of the Act. The Equal Employment Opportunity has announced forthcoming regulations and guidance that will include, among other provisions, examples of reasonable accommodations required for consideration under the Act. It is anticipated that these examples will include such considerations as: the ability for the pregnant worker to park closer to the company’s entrance; flexible working hours; additional break times to use the bathroom, eat and rest; leave or time off from childbirth; reassignment from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy; and the ability to sit and/or drink water.
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