On August 7, 2023, The U.S. Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) to implement the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023.
Requirements of the Pregnant Workers Fairness Act
The PWFA requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. The exception is if the accommodation will cause the employer an undue hardship.
The PWFA aims to fill the gap with existing protections against pregnancy discrimination under federal laws, namely Title VII of the Civil Rights Act and the Americans with Disabilities Act. For example, the ADA prohibits discrimination against employees with disabilities, but pregnancy itself is not considered a disability that requires accommodation. Employers must treat pregnant employees the same as other employees under Title VII. However, Title VII does not impose accommodation requirements.
Under the PWFA, covered employers cannot:
- Require an employee to accept an accommodation without a discussion about the accommodation between the employee and the employer;
- Deny a job or other employment opportunities to a qualified employee/applicant based on the person’s need for reasonable accommodations;
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfere with any individual’s rights under the PWFA.
Reasonable accommodations under the PWFA
Under the PWFA, a reasonable accommodation has the same definition as under the ADA. The proposed regulations provide examples of a reasonable accommodation under the PWFA, including:
- Allowing longer, additional or more flexible breaks;
- Providing sitting or providing equipment, such as seating, a sit/stand desk, or anti-fatigue floor matting;
- Providing unpaid leave;
- Changing a work schedule so the employee can work shorter hours, part-time or start later;
- Providing closer parking;
- Excusing an employee from strenuous activities;
- Allowing telework/offering work-from-home options;
- Job restructuring by removing marginal functions;
- Modifying food or drink policies to allow a worker to have a water bottle or food; and
- Permitting time for doctor’s appointments or to recover from childbirth.
Consistent with the ADA, there are limits on an employer’s obligation to provide certain accommodations. If the employer can show that accommodating a worker’s temporary suspension of an essential function(s) would impose an undue hardship if extended beyond a certain period of time, the employer would only be required to provide that accommodation for the period of time that it does not impose an undue hardship. The proposed regulation offers the following example:
“Consider the situation where an employee seeks to have an essential function suspended for six months. The employer can go without the function being done for four months, but after that, it will be an undue hardship. The employer must accommodate the worker’s inability to perform the essential function for the four months and then consider whether there are other reasonable accommodations that it can provide, absent undue hardship.”
Helpful Guidance from EEOC
The EEOC previously released educational resources on the PWFA, including:
- A set of FAQs, “What You Should Know About the Pregnant Workers Fairness Act;”
- A webinar for employers;
- An informational poster for healthcare facilities;
- Tips for workers to request accommodations;
- A short video series; and
- A revised “Know Your Rights” poster required to be posted in most workplaces.
The NPRM was posted by the Federal Register for public inspection. It will be available for public comment in the Federal Register on August 11, 2023. Members of the public will have 60 days from the date of publication to comment through www.regulations.gov.
Employer Compliance Tips
The PWFA aims to end discrimination against pregnant workers and enforcement of the Act is a top priority for the EEOC. Here are some important steps employers should take to ensure compliance with the new law:
- Review and update accommodation policies and procedures. This will include the right to reasonable accommodation for workers with known limitations related to pregnancy, childbirth, or associated medical conditions;
- Make sure to engage in the interactive process and discuss how the employer can help the employee;
- Communicate with an employee seeking an accommodation and do not assume a pregnant employee wants leave as an accommodation;
- Train supervisors on the requirements of the PWFA and how to respond to requests for accommodation;
- Make sure supervisors know they cannot retaliate against an employee seeking an accommodation;
- Modify nonretaliation policies to include prohibiting retaliation related to requesting accommodations for pregnancy, childbirth and related medical reasons.
As always, please let me know if you have questions about the Pregnant Workers Fairness Act or if I can help.