The Pregnant Workers Fairness Act (PWFA) is a landmark civil rights law that ensures that pregnant and postpartum workers are not forced off the job, and get the accommodations needed without facing discrimination or retaliation in today’s workplace.
This new law became effective June 27, 2023 and applies to all employers with 15 or more employees including applicants. This new law applies only to an employer’s obligation to provide reasonable accommodation to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship.
And note, the PWFA does not replace other federal, state or local laws that provide more protections to workers affected by pregnancy, childbirth or related medical conditions. As of this time, there are more than 30 states and cities that have laws that provide accommodations for pregnant workers.
By guaranteeing a right to reasonable accommodations for pregnancy, childbirth and related medical conditions, the PWFA actually closes a gap in federal law that left pregnant and postpartum workers without remedy if they needed accommodations in order to prevent health complications and keep working.
Prior to the PWFA, existing laws like the Pregnancy Discrimination Act only provided workers the right to receive accommodation if they could identify other similarly situated employees in their workplace who received accommodations.
Likewise, the Americans With Disabilities Act only provided the right to reasonable accommodations if the worker had a pregnancy-related disability that affected their ability to perform the essential functions of the job.
Before the PWFAs passage, many pregnant workers who had a medical need for accommodations related to their pregnancy had no legal protections and were often forced off the job and into financial difficulties.
Let’s discuss what “qualified” means under this new law. Under the PWFA, a pregnant employee is “qualified” if she can *perform the essential functions of her job with or without a reasonable accommodation, OR if she is temporarily unable to perform an essential function of her job but will be able to do so again “in the near future.(40 Weeks)” The Equal Employment Opportunity Commission or EEOC proposes to use 40 weeks as the “near future,” meaning that if the mother can perform her essential job functions within 40 weeks of the time that the function is suspended, she is “qualified.” The 40 weeks is based on the duration of a normal, full-term pregnancy.
In contrast with the ADA, the PWFA does not require that an employee be “substantially limited” and does not require that the condition be somewhat long term in nature. Instead, the PWFA is intended to address the limitations that arise throughout pregnancy, including morning sickness, lifting restrictions, postpartum depression, and other conditions that may go away in a relatively short time.
Accordingly, the PWFA applies to conditions that may occur outside the roughly nine months of pregnancy, including trying to get pregnant and trying not to get pregnant.
Let’s now discuss what constitutes the reasonable accommodations required by this new law. Firstly, note that the term is from the Americans With Disabilities Act and the PWFA uses a similar definition. Quite simply, it means a change in the work environment or how things are usually done. Here are some examples:
- Frequent breaks.
- Sitting verses standing.
- Schedule changes, part-time work, and paid and unpaid leave.
- Telework.
- Special parking.
- Light duty.
- Job restructuring.
- Making existing facilities accessible or modifying the work environment.
- Temporarily suspending one or more essential functions. and
- Acquiring or modifying equipment, uniforms, or devices.
And now let’s define Undue Hardship. Generally, it means creating significant difficulty or expense for the operation of the employer to accommodate. Many of the factors to consider are the same factors found within the ADA and include the following:
- The length of time that the employee or applicant will be unable to perform the essential functions of their position.
- Whether or not there are actually tasks to be accomplished. Are there tasks to be accomplished
- The nature of the essential functions, including their frequencies.
- Whether the Has the employer accomodated other employees or applicants in similar positions who are unable to perform the essential functions of their positions with temporary suspensions of those functions.
- If necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential functions in question; Are there other employees who can perform the function and
- Whether the Can the essential functions can be postponed or remain unperformed for any length of time, and, if so, for how long.
The EEOC lists some accommodations that will almost always be found to be reasonable and that employers should quickly grant without asking for documentation. They include:
- Allowing the individual to keep water or another beverage handy throughout the day,
- Providing extra bathroom breaks
- Allowing the individual to sit or stand as necessary, AND
- Allowing the individual to have extra breaks for eating and drinking.
A very important point to note, it’s unlawful for an employer to require an employee to accept a reasonable accommodation without first going through the interactive process which will be defined in a later Pro Talk.
As always, don’t hesitate to contact your local Express office for additional guidance. Until next time, this is Russ Moen for Express Pro Talks.