Written by: Karina Shareen
On June 27, 2023, a new federal law went into effect requiring employers to provide “reasonable accommodations” to workers and job applicants who need them due to pregnancy, childbirth, or related medical conditions. The Pregnant Workers Fairness Act (PWFA) was first introduced in Congress in 2012 and has been reintroduced in almost every legislative session since. The PWFA passed with bipartisan support in 2022 in large thanks to growing awareness of the country’s worsening maternal health outcomes and increased demand of support for working mothers.
The new law requires “covered employers”[1] to provide “reasonable accommodations”[2] to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”[3] Thanks to the broad language of the PWFA, “related medical conditions” provides protection to women undergoing fertility treatment, as well as those who have postpartum depression and those who have had an abortion or pregnancy loss.
The U.S. Equal Employment Opportunity Commission (EEOC) is required to publish guidance on how employers should implement the law by the end of the year, including a list of examples of reasonable accommodations, which the public will have a chance to comment on. Examples of “reasonable accommodations” employers can expect to provide include: (1) receiving closer parking; (2) ability to sit or drink water; (3) have flexible hours; (4) receive additional break time to use the bathroom, eat, and rest; (5) relief from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy; and (6) receive appropriately sized uniforms and safety apparel.
The new law only bridges a legal gap between the American with Disabilities Act (ADA) and Pregnancy Discrimination Act (PDA) in which pregnant women could fall through in the workplace as neither law offers protections for otherwise healthy pregnant workers with pregnancy-related limitations. The PWFA applies only to accommodations, and does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.
The PWFA expands protections for pregnant workers in Louisiana as it applies to more employers in the state. Currently, Louisiana’s Fair Employment Practices Act (FEP) only provides pregnancy accommodation and prohibits employment discrimination related to an employee’s pregnancy, childbirth, or related medical condition for employers with twenty-five (25) or more employees in Louisiana. The PWFA lowers the “covered employers” threshold to include all employers with fifteen (15) employees. Thus, the PWFA provides protection for pregnant workers in Louisiana who work for smaller businesses.
The best way to ensure your business is complying with the PWFA is to: (1) identify the employee’s known limitations; (2) identify the change in work the employee needs; and (3) determine whether the change in work will present an undue hardship. Below are examples of when and how the PWFA should apply:
Fact Pattern 1: A new call center employee needs time off to attend therapy appointments for postpartum depression. The employee has not earned enough sick leave yet to cover the time away for the appointments.
Here, the employee’s known limitation is postpartum depression and the symptoms related to it. The employee needs a change in how work is done because they need to leave to attend healthcare appointments. This employee will be qualified with reasonable accommodation of leave to attend the therapy appointments. Unless there is a different law or employer policy in place that provides for paid leave, the leave would be unpaid, but the employer will have to provide that leave for the employee or another effective accommodation (i.e., advancing sick leave) absent undue hardship.
Fact Pattern 2: A retail worker needs eight weeks of leave to recover from childbirth. The employee does not qualify for Family and Medical Leave (FMLA) leave, and the employer does not offer short term disability leave. The worker will be able to do the job after recovering from childbirth.
Under this fact pattern, the employee’s known limitation is recovery from the physical problems resulting from childbirth. The employee needs a change in working conditions – eight weeks of maternity leave. Pursuant to the PWFA, the employer will have to provide maternity leave absent undue hardship.
Tips for employers to comply with the PWFA:
- Train supervisors about the PWFA. Employees often go to first level supervisors regarding accommodation requests and supervisors should be trained how to respond.
- Remember that the worker does not have to have a disability or something severe.
- Remember that the accommodations provided can be simple.
- Keep in mind that the employee may need different accommodations as the pregnancy progresses, they recover from childbirth, or the related medical condition improves or gets worse.
- Reach out for assistance.
The EEOC will begin to accept charges under the PWFA on June 27, 2023. However, for the PWFA to apply the situation complained about in the charge must have happened on June 27, 2023, or later.
[1] “Covered employers” include private and public sector employers with at least fifteen (15) employees, Congress, federal agencies, employment agencies, and labor organizations.
[2] “Reasonable accommodations” are changes to the work environment or the way things are usually done at work.
[3] An “undue hardship” is significant difficulty or expense for the employer.