What Employers Need to Know About the Pregnant Workers Fairness Act (PWFA)

On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (“PWFA”). Here is what you need to know about the law:

When does it take effect? June 27, 2023

Who is covered by the law? Individuals who work for employers with 15 or more employees and job applicants applying for work with employers with 15 or more employees.

What protections does it provide? The PWFA requires covered employers to provide accommodations for job applicants and employees who are experiencing conditions related to pregnancy or childbirth and prohibits employers from discriminating against applicants and employees because of their need for a pregnancy-related accommodation. The definition of “reasonable accommodation” mirrors the requirements set forth in the ADA. Specifically, the law provides:

It shall be an unlawful employment practice for a covered entity to–

(1) not make reasonable accommodations to the known limitations

related to the pregnancy, childbirth, or related medical conditions

of a qualified employee, unless such covered entity can demonstrate

that the accommodation would impose an undue hardship on the

operation of the business of such covered entity;

(2) require a qualified employee affected by pregnancy,

childbirth, or related medical conditions to accept an

accommodation other than any reasonable accommodation arrived at

through the interactive process . . . . ;

(3) deny employment opportunities to a qualified employee if

such denial is based on the need of the covered entity to make

reasonable accommodations to the known limitations related to the

pregnancy, childbirth, or related medical conditions of the

qualified employee;

(4) require a qualified employee to take leave, whether paid or

unpaid, if another reasonable accommodation can be provided to the

known limitations related to the pregnancy, childbirth, or related

medical conditions of the qualified employee; or

(5) take adverse action in terms, conditions, or privileges of

employment against a qualified employee on account of the employee

requesting or using a reasonable accommodation to the known

limitations related to the pregnancy, childbirth, or related

medical conditions of the employee.

What is different from the Pregnancy Discrimination Act? The Pregnancy Discrimination Act (“PDA”) protects employees from bias based on pregnancy or related conditions but does not guarantee accommodations for pregnant workers. In 2015, the United States Supreme Court’s decision in Young v. United Parcel Service Inc., held that employers making accommodations for other similarly situated workers must provide a comparable accommodation for pregnant workers. Accordingly, previously, if no accommodate were provided for similarly situated workers then no accommodation would be required for pregnant employees (at least as it relates to the Pregnancy Discrimination Act, but the Company still may have had obligations under the Americans with Disabilities Act).

What is different from the Americans with Disabilities Act? The definition of “reasonable accommodation” is parallel to that provided in the ADA and the PWFA essentially mirrors the protections for disabled workers under the ADA. The PWFA, however, would only provide protection on a temporary basis for the period of time in which the employee is pregnant or experiencing a condition related to childbirth.

What should the company do to prepare for the new law? Human Resources teams should be mindful that a reasonable accommodation dialogue should be occurring with any employee who has indicated that they are experiencing a pregnancy-related condition that could adversely affect their ability to perform essential functions. Further, as it relates to applicants, pregnancy status should not be analyzed as an element of an applicant’s ability to perform essential functions of a position. Once an offer of employment is made, then a reasonable accommodation dialogue should be entered into if the individual indicates they are in any way limited in their ability to perform essential job duties.

Are there any other things we should know? The PWFA will be enforced by the United States Equal Employment Opportunity Commission and over the course of the next few years the EEOC will provide guidance concerning reasonable accommodations related to pregnancy-related conditions.

Contact Tawny Alvarez or another member of Verrill’s Employment and Labor team to with questions as to the PWFA and how to accommodate pregnancy in the workplace more generally.