Client Alert: The Pregnant Workers Fairness Act Goes Into Effect

Cara A. Fialkoff and Marco A. Gonzalez Jr.

On June 27, 2023, the Pregnant Workers Fairness Act (“PWFA”) went into effect. The PWFA requires certain employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. Signed by President Joe Biden at the end of 2022, the PWFA applies to ”covered employers” which means private and public sector employers with at least fifteen (15) employees, Congress, Federal agencies, employment agencies, and labor organizations. [1]

The PWFA will now make it unlawful for a covered entity to: (1) not make reasonable accommodations in connection with 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; (2) require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation; (3) deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations; (4) require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided; 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.[2]

It should be noted that the definition of  “undue hardship” is the same definition as set forth in the Americans with Disabilities Act (“ADA”) which is any action requiring “significant difficulty or expense” for the employer. A key issue for impacted employers is how this new law will affect their business.  The House Committee on Education and Labor Report on the PWFA provides some guidance for covered employers. Some cited examples of possible reasonable accommodations under the PWFA including: assistance with manual labor; job reassignment; the ability to sit or drink water; receive a closer parking space; flexible hours; appropriately sized uniforms; additional break time; 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.[3]

The Equal Employment Opportunity Commission (“EEOC”) is the agency responsible for enforcing the law and promulgating regulations.  EEOC plans to publish the proposed PWFA regulations so the public can offer comments before the regulations become final. Despite the lack of regulations for covered employers to rely upon for compliance with the law, the agency has, nonetheless, begun accepting charges of violation of the law as of June 27, 2023.  For the PWFA to apply, the alleged conduct complained about in the charge must have happened on June 27, 2023 or later.  The law is not applicable to employers who receive requests for reasonable accommodations from a pregnant employee related to pregnancy, childbirth, or other related medical conditions prior to June 27, 2023.  However, employees may have a right to receive an accommodation under other applicable federal or state law.

Employers should also understand that that the PWFA does not replace any other federal, state, or local laws that are more protective of employees affected by pregnancy, childbirth, or related medical conditions.  Indeed, , the PWFA applies only to accommodations and not to claims of discrimination. The EEOC will continue to enforce federal laws that prohibit discrimination against workers based on pregnancy, childbirth, or related medical conditions, including but not limited to: Title VII which protects an employee from discrimination based on pregnancy, childbirth, or related medical conditions; the ADA which protects an employee from discrimination based on pregnancy-related conditions which may be categorized as disabilities under the law; the Family and Medical Leave Act which provides covered employees with unpaid, job-protected leave for certain family and medical reasons; and the Providing Urgent Maternal Protections for Nursing Mothers Act which broadens workplace protections for employees to express breast milk at work.

[1] https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act

[2] https://www.congress.gov/117/bills/hr2617/BILLS-117hr2617enr.pdf#page=1626

[3] https://www.congress.gov/congressional-report/117th-congress/house-report/27/1?overview=closed