Federal Pregnant Workers Fairness Act Now in Effect

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By: Julie K. Hopkins

The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023. This new federal law, which applies to most private and public sector employers with at least 15 employees, requires employers to provide reasonable accommodations, to workers with known limitations related to pregnancy, childbirth, or related medical conditions. Since 2019, most Kentucky employers with 15 or more employees have been subject to similar obligations under the Kentucky Pregnant Workers Act, however for Ohio small employers this law creates significant new obligations.

Workplace Accommodation Obligations

The PWFA expands on the pregnancy-related reasonable accommodation obligations found in the Americans with Disabilities Act (the “ADA”), which took effect over 30 years ago.  Under the ADA, a covered employer with 15 or more employees is required to provide reasonable accommodations if an employee’s pregnancy-related condition rises to the level of a disability, (e.g., a non-temporary condition that substantially limits a major life activity). Under the ADA, an accommodation is not reasonable if it would create an undue hardship for the employer.  An “undue hardship” is generally only found if an accommodation would result in significant expense or difficulty for the employer.

The PWFA now requires covered employers to provide a reasonable accommodation not just to employees with a pregnancy-related disability, but much further to require the same sorts of accommodations for employees with any known limitations resulting from pregnancy.  A “known limitation” is defined as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the employer.” There is no requirement under the PWFA that the pregnancy-related physical or mental condition rise to the level of a disability before the obligation to provide a reasonable accommodations arises.

Examples of potential workplace accommodations under the PWFA could include things such as:

  • providing a chair, stool or other seating so the employee can sit while working;
  • allowing the employee to drink water while working;
  • a closer assigned parking space;
  • flexible hours/start times;
  • additional breaks to use the bathroom, eat, and rest;
  • appropriately sized uniforms and safety apparel;
  • modification to duties to remove strenuous activities; and
  • modification of duties to prevent exposure to chemicals not safe for pregnancy

As noted above, an employer is only excused from providing an accommodation under the PWFA if it would result in significant difficulty or expense for the employer.

Leave Obligations Expanded

The PWFA also creates new leave obligations for many employers as well. The ADA has long recognized leave as a reasonable accommodation for employees with a pregnancy-related disability, and the Family Medical Leave Act (FMLA) has generally required employers with 50 or more employees to provide time off to employees who have worked for at least 12 months for the employer and who have a pregnancy-related serious health condition.  Now under the PWFA, nearly all employers with 15 or more employees must consider the feasibility of time off as a reasonable accommodation for an employee with a pregnancy-related limitation, even when that limitation does not qualify as a disability under the ADA, a serious health condition under the FMLA or the employee did not otherwise meet the requirements for FMLA leave

At the same time, since this leave is unpaid, it is important to note that under the PWFA, employers cannot default to placing an employee on leave instead of providing a workplace accommodation. If a reasonable accommodation exists that would allow the employee to continue working, the employer cannot require that the employee take leave instead.

Additional Protections under the PWFA

In addition, under the PWFA, employers may not:

  • unilaterally require an employee to accept an accommodation without first discussing the accommodation with the employee;
  • refuse to hire or deny other employment opportunities, such as transfers or promotions, to qualified employees or applicants based the individual’s need for a reasonable accommodation;
  • require an employee to take leave if another reasonable accommodation can be provided that would allow the employee continue working;
  • retaliate against an employee for exercising rights under the PWFA or for reporting or opposing violations of the PWFA; or
  • otherwise interfere with an employee’s rights under the PWFA.

Additional Laws Protecting Pregnant Workers

The PWFA now joins a list of several other state and federal laws that provide protections and benefits to workers, during and immediately following pregnancy:

  • the federal Family Medical Leave Act (FMLA), which requires employers with 50 or more employees to provide time off to employees for pregnancy-related serious health conditions, and up to 12 weeks of unpaid leave for recovery and bonding following the birth of a child;
  • Title VII is a federal law which prohibits discrimination, harassment and retaliation against workers due pregnancy, childbirth, or related medical conditions;
  • the ADA requires employers to provide reasonable accommodations to employees with pregnancy-related disabilities;
  • the Kentucky Civil Rights Act and the Ohio Civil Rights Act provide many of the same protections found in the ADA and Title VII to employees under state law.
  • the federal Fair Labor Standards Act (FLSA), as amended by the Affordable Care Act (to cover nonexempt workers) and the PUMP for Nursing Mothers Act (to cover exempt employees as well) requires employers to provide reasonable break time, as needed, for an employee to express breast milk for their nursing child for one year after the child’s birth in a private workplace setting, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.
  • the Kentucky Pregnant Workers Act, which became part of Kentucky Civil Rights Act in June of 2019, prohibits discrimination in employment and also requires employers to provide reasonable accommodations to employees with limitations related to pregnancy, childbirth, or related medical conditions, and during the first year following delivery, provide nursing mothers with a private space that is not a bathroom for expressing breast milk.

Enforcement

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the PWFA. Going forward, the EEOC will analyze charges regarding discrimination and failure to accommodate workers affected by pregnancy, childbirth, or related medical conditions under the PWFA, the ADA and/or Title VII as appropriate. The U.S. Department of Labor will continue to enforce violations of the FMLA’s leave provisions with respect to pregnant workers and new parents.

By statute, the EEOC must issue its regulations for administration and enforcement of the PWFA, and include examples of what it would consider to be reasonable accommodations under the PWFA, by December 23, 2023.

If you have questions about anything mentioned in this article or other labor/employment law issues, please contact Julie Hopkins at jkhopkins@strausstroy.com.