Aug 08, 2023

Pregnant Workers Fairness Act

By: Marissa Cerkoney

On June 27, 2023, a new federal law went into effect that closes a gap in coverage for pregnant and postpartum employees. The Pregnant Workers Fairness Act (PWFA) requires employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”

Under the PWFA, pregnant or postpartum employees seeking reasonable accommodations are no longer required to (1) have a pregnancy-related disability or (2) identify other similarly situated employees with accommodations. Prior to the enactment of the PWFA, pregnant or postpartum employees were limited in their ability to obtain reasonable accommodations. Although employees were protected from discrimination on the basis of pregnancy under Title VII of the Civil Rights Act of 1964 (Title VII), they were only entitled to reasonable accommodation if they were able to identify other similarly situated employees in the workplace who received accommodations. Moreover, since pregnancy itself is not a disability under the Americans with Disabilities Act of 1990 (ADA) and few pregnancy-related conditions are considered a disability, pregnant and postpartum employees rarely were protected under the ADA. With the passage of the PWFA, pregnant and postpartum employees are now afforded reasonable accommodations that were not previously covered under Title VII or the ADA.

It is important to note that although the PWFA provides additional protections to pregnant and postpartum employees, those protections only apply to accommodations. Additionally, the PWFA does not replace federal, state, or local laws that provide greater protections to workers affected by pregnancy, childbirth, or related medical conditions. Like the PWFA, North Dakota provides accommodations for pregnant workers as well, and can be summarized as follows:

An employer must provide reasonable accommodations for an otherwise qualified individual because that individual is pregnant. An employer is not required to provide an accommodation that would disrupt or interfere with the employer’s normal business operations, threaten an individual’s health or safety, contradict a business necessity of the employer, or impose an undue hardship on the employer. N.D.C.C. §14-02.4-03

At this time, the Equal Employment Opportunity Committee (“EEOC”) has not yet issued its regulations and examples of reasonable accommodations; however, it has pointed to the House Committee on Education and Labor Report on the PWFA, which provided several examples of possible reasonable accommodations including the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take 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.

The Takeaway:

With the enactment of the PWFA, pregnant and postpartum employees now have more protection in the workplace than ever before. Employers are urged to recognize that the PWFA is an addition to the already existing laws that afford protection beyond reasonable accommodations to pregnant and postpartum employees. In applying the PWFA, pregnant and postpartum employees are able to receive reasonable accommodations, while still maintaining the protections under Title VII, the ADA, and other existing laws that make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related conditions. To ensure that workplace policies do not infringe on the protections imposed by the PWFA, employers are well-advised to seek the help of legal counsel.

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Reprinted with permission from an article submitted for publication in the August, 2023 Southwest Area Human Resource Association newsletter.