|What Employers Should Know About the Federal Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (PWFA) is a federal civil rights law that went into effect June 27, 2023 and provides additional protections to employees affected by pregnancy or childbirth. The PWFA requires “covered employers” to provide reasonable accommodations to workers who have limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship. “Covered employers” are any private or public sector employers with at least 15 employees.
History of Federal Laws that Protect Pregnant Workers
The PWFA was passed with the intention of bridging gaps left open by the Pregnancy Discrimination Act (PDA) of 1978 and the Americans with Disabilities Act of 1990 (ADA). The PDA banned discrimination against pregnant women by requiring that they be treated the same as those who are similar “in ability or inability to work.” This standard placed a difficult burden on pregnant women to produce evidence of other similar employees who had been provided accommodations, and as a result many women in jobs in both the public and private sector were denied accommodations. The ADA required employers to provide reasonable accommodations to employees with conditions related to pregnancy which qualify as a disability however, many other pregnancy related conditions are left uncovered. Because pregnancy itself is not defined as a disability under the law, a pregnant worker who sought an accommodation under the ADA was unable to do so.
The PWFA closed the gap in federal law by giving pregnant and post-partum workers a right to reasonable accommodations as long as it does not cause an employer undue hardship.
What are Reasonable Accommodations under Pregnant Workers Fairness Act?
“Reasonable accommodations” are any changes or modifications to the work environment which would allow an employee with a disability an opportunity to satisfactorily perform a job.
Examples of reasonable accommodations that can be made available to workers are: offering additional, longer, or more flexible break periods, changing a work schedule such as having shorter hours or allowing for a later start time, changing food or drink policies to allow a worker to have a water bottle or food, providing leave for medical appointments or to recover from childbirth.
What is an “undue hardship”?
If an accommodation causes an employer undue hardship, then the employer has the right to deny the request. If a reasonable accommodation would be significantly difficult or expensive for an employer to provide then it may be an undue hardship. Undue hardship is determined on a case-by-case basis depending on the cost of the accommodation related to an employer’s financial resources.
For example, it might not be an undue hardship for a large corporation to provide an employee with extra breaks to use the restroom. In contrast, this may cause undue hardship for a small employer with less staff and fewer resources.
What does the Pregnant Workers Fairness Act prohibit?
The PWFA states that covered employers cannot:
1. Require an employee to accept an accommodation without a discussion between the worker and the employer;
2. Deny a job to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
3. Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
4. Retaliate against an individual for reporting unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
5. Interfere with any individual’s rights under the PWFA.
California’s Protections for Pregnancy, Childbirth or a Related Medical Condition
It is important to remember that the PWFA does not replace state or local laws that are more protective of workers affected by pregnancy, childbirth or related medical conditions. California has long had its own laws pertaining to pregnant workers such as California Government Code § 12945, which requires employers to make reasonable accommodations for employees who have work-related limitations related to pregnancy or childbirth. These accommodations include temporary transfer to a less strenuous position, if an employee requests this upon the advice of her health care provider.
Under California law, women temporarily disabled by pregnancy or childbirth are also entitled for up to four months of unpaid leave for as long as they remain disabled. During this period, employers must continue to provide the employee with the same level of health insurance coverage she received prior to taking leave. This law applies to employers with 5 or more employees.
Under the California Family Rights Act, if an employee has more than 12 months of service with an employer, and has worked at least 1,250 hours in the 12-month period before taking leave, an employee is entitled to take up to 12 weeks in any 12 months period of family care and medical leave. This applies to state employers and any person who directly employs at least five people.
Accordingly, the PWFA does not impose any new requirements on California only employers.
Taking into consideration the recent changes in federal law, employers may consider taking steps to ensure compliance, particularly if they are a multi-state employer. For example, employers should train supervisors about the PWFA so they are prepared when they receive reasonable accommodation requests. Employers might also consider reviewing their accommodation policies to ensure compliance with the PWFA and analyze what accommodations employers could potentially provide to pregnant employees if a request is received.