Pregnant Workers Fairness Act Expands Protections and Employer Obligations

Employers take note: a new law creates a request for accommodation framework for employees with known limitations due to pregnancy, childbirth or related conditions that is similar to the Americans with Disabilities Act (ADA), but with expanded protection.

With the formal enactment of the Pregnant Workers Fairness Act (PWFA) on June 27, 2023, employers with 15 or more employees are now required to provide reasonable accommodation to qualified applicants and employees with known limitations due to pregnancy, childbirth or related medical conditions.

Previously, accommodations were only required when the employee’s pregnancy, childbirth or related medical condition resulted in a disability, or when accommodations were made to similarly situated nonpregnant employees. The PWFA expands employers’ obligations to provide reasonable accommodation and created a process similar to that under the ADA for requesting accommodation.

Applicable employers must engage in an interactive process with the pregnant employee to determine: (1) if the employee is entitled to a reasonable accommodation under the PWFA; and, (2) what accommodation may be reasonable. Examples of possible reasonable accommodations include:

• Light duty assignments
• More frequent breaks
• Modified/flexible work schedules
• Temporary transfers
• Leave
• Ability to sit or drink water
• Receive appropriately sized uniforms
• Be excused from strenuous activities and/or activities involving exposure to compounds unsafe during pregnancy
• Receive closer parking

Employees are not entitled to a specific reasonable accommodation and employers are prohibited from requiring an employee to take a paid or unpaid leave of absence as a reasonable accommodation if any other alternative is available. Also, similar to the ADA, employers are not required to reasonably accommodate a pregnant employee if the accommodation would impose an undue hardship, a significant difficulty or expense on the employer’s business.

However, where the ADA requires that employers provide reasonable accommodation if the medical condition is a disability within the meaning of the ADA, i.e., able to perform the essential functions of their position, the PWFA requires that employers provide reasonable accommodation to employees who are unable to perform the essential functions of their position, if the inability is temporary.

Under the PWFA, employers are prohibited from:

• Requiring an employee to accept an accommodation without discussion about the accommodation between the employee and employer;
• 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
• Interfering with any individual’s rights under the PWFA.

For more information or any questions regarding the PWFA, please contact Theresa Zechman at theresa.zechman@stevenslee.com.