UPDATE (8/8/2023): The Equal Employment Opportunity Commission issued the long-anticipated Proposed Rule to clarify the implementation of the Pregnant Workers Fairness Act (PWFA) (https://public-inspection.federalregister.gov/2023-17041.pdf). The Proposed Rule is available for comments for the next 60 days, so the content is subject to change and not final. While not final, the Proposed Rule provides clarity for many employers on how to fulfill their obligations under the PWFA. The Proposed Rule reiterates certain types of reasonable accommodations a worker may seek under the PWFA including job restructuring, modified work schedules, breaks, use of paid or unpaid leave and many other examples. The Proposed Rule provides further guidance on how to determine if a physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions and provides a non-exhaustive list of examples to assist workers and employers. The Proposed Rule also details what may qualify as a reasonable accommodation under the PWFA. If you have any questions or concerns regarding the PWFA or any other employment-related matters, please reach out to our Labor & Employment Group!
On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) officially became law. The Equal Employment Opportunity Commission (EEOC) has issued statements confirming it will start accepting charges for any violations of the PWFA that occur after June 27, 2023. It is estimated that this new law will affect approximately 3 million people’s ability to seek workplace accommodations due to pregnancy, childbirth, and related conditions. So, what should employers know about the PWFA?
In sum, the PWFA requires both private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer undue hardship or burden.
Reasonable accommodations are not strictly defined nor are they a one-size fits all situation. Reasonable accommodations depend on many factors including the employee’s job duties, their condition(s) and how the requested accommodation impacts the employer. The PWFA is similar to other laws protecting employee’s rights to seek and engage in an interactive process to determine reasonable accommodations. It also prohibits employers from taking adverse action because of a request for an accommodation or interfering or retaliating against an employee for exercising their rights under the PWFA.
Examples of potential reasonable accommodations provided in literature published by the EEOC include additional, longer or more flexible breaks, changing work schedules, changing policies to allow food or drink at workstations, and allowing leave for medical appointments. As of this publication, the EEOC had not issued specific regulations, but published an updated Know Your Rights Poster. You can view the updated poster here.
It is equally important to understand other federal, state, and local laws exist that prohibit adverse actions to be taken against workers on the basis of pregnancy, childbirth, or related medical conditions. The PWFA does not replace any existing laws that are more protective of an employee’s rights. For example, the Family Medical Leave Act (FMLA) provides certain covered employees of covered employers with unpaid, job-protected leave for particular family and medical reasons; and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) (an amendment to the Fair Labor Standards Act) provides workplace protections for expressing breast milk at work. In certain situations where specific statutory conditions are met, workers affected by pregnancy, childbirth, or a related medical condition may also have protections under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act (ADA). Additionally, 30 states, Puerto Rico and the District of Columbia along with a handful of cities have enacted laws requiring accommodations for workers related to pregnancy, childbirth, and related condition(s). The 20 states without existing state laws applicable to such accommodations are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Ohio, Oklahoma, Michigan, Mississippi, Missouri, Montana, New Hampshire, Pennsylvania, South Dakota, Texas, Wisconsin, and Wyoming.
Employers should understand what protections their employees who are pregnant, have given birth, or have related medical conditions to childbirth have under all applicable federal, state, and local laws. If you have any questions about this or any other employment-related topics, please reach out to our Labor & Employment Group!
