On December 29, 2022, President Biden signed into law new legislation passed by Congress to protect the rights of pregnant workers: the Pregnant Workers Fairness Act (“PWFA”). Because this statute is new, there is not yet interpretive caselaw available, but much of the language is mirrored in other long-standing federal legislation protecting employee rights.
The PWFA requires covered employers to provide reasonable accommodation to workers with known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation causes an undue hardship.
The law became effective on June 27, 2023, and solidifies the employer’s responsibility to provide reasonable accommodation to all covered employees, including those whose pregnancy is not otherwise related to a disability, as already required by the Americans with Disabilities Act of 1990 (“ADA”). Unlike the Pregnancy Discrimination Act (“PDA”), which was amended to Title VII of the Civil Rights Act of 1964, the PWFA does not cover adverse employment actions due to pregnancy (such as termination), but it enhances workers’ rights as all the protections guaranteed under Title VII and the PDA still apply. Together with the Family Medical Leave Act of 1993 (“FMLA”), which provides 12 weeks of unpaid leave for the birth, adoption, or foster placement of a child, the care of a family member with a serious health condition, or the employee’s own health condition, Title VII, the PDA, the ADA, and now the PWFA offer a comprehensive umbrella of protection for pregnant workers.
Who is a covered employer under the PWFA?
As under Title VII, a covered employer is one in the public or private sector with at least 15 employees.
What constitutes a reasonable accommodation under the PWFA?
The PWFA adopts the same meaning of “reasonable accommodation” as used in the ADA, including the interactive process, which requires the employer to actively engage with the employee to determine an appropriate reasonable accommodation. Some examples of a reasonable accommodation include the following:
- The ability to sit or drink water;
- Be permitted to receive closer parking;
- Have flexible hours;
- Receive appropriately sized uniforms and safety apparel;
- Receive additional break time to use the bathroom, eat, and rest;
- Take leave or time off to recover from childbirth; and
- Be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
What constitutes an undue hardship under the PWFA?
The PWFA uses the same meaning of “undue hardship” as used in the ADA. The undue hardship test is a high standard that must pose significant difficulty or expense to the employer, such that it is too difficult or too expensive to provide, considering the employer's size, financial resources, and the needs of the business.
What other worker protections are covered under the PWFA?
Under the PWFA, an employer is prohibited from:
- Requiring an employee to accept an accommodation without a discussion with the employee about the accommodation;
- Denying a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
- Requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation or legal proceeding); or
- Interfering with any individual’s rights under the PWFA.
Is pregnancy loss, including abortion healthcare, covered under the PWFA?
The PWFA covers accommodations for limitations “related to, affected by, or arising out of pregnancy.” This would include those circumstances related to pregnancy loss such as miscarriage, stillborn birth, and abortion healthcare. Because the PWFA is federal law, this would seemingly cover abortion healthcare including in those states that have enacted restrictions on abortion. However, this may not apply to certain employees of religious organizations. As this is new legislation and an emerging area of the law, you should consult an attorney specializing in employment law and civil rights for guidance.
As always, if you have any concerns about your rights as a pregnant worker or are having difficulties obtaining an accommodation, medical leave, or retaliation from your employer for exercising your rights or in support of someone else exercising theirs, you should seek legal assistance.
When it comes to looking for legal help with any type of illegal employment discrimination, Weiler Law PLLC is here to help. Our team of attorneys understands the complexities involved in these cases and is dedicated to providing the best possible representation. We can work closely with you throughout the process to ensure that your rights are protected.