After years of court disagreement on an employer’s duty to accommodate pregnant workers, the confusion is finally being cleared up with the enactment of the Pregnant Workers Fairness Act, or PWFA. Signed into law in December of 2022, this law officially goes into effect on June 27, 2023.
While discrimination based on pregnancy has been unlawful since the enactment of the Pregnancy Discrimination Act of 1978 (PDA), the PWFA provides pregnant employees and applicants with a right to a reasonable accommodation.
For employers aware of the Americans with Disabilities Act (ADA), the requirements under the PWFA will sound familiar. The new law will require employers with 15 or more employees to provide a reasonable accommodation to workers for known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation would cause the employer undue hardship.
The PWFA in Action
Here are some of the ways the PWFA would apply in various situations.
Scenario 1. Your company of 100 employees has a large parking lot, resulting in some workers needing to park further away from the building. A pregnant employee who is toward the end of her pregnancy tells you she is having difficulty walking from her car to the office. After engaging in the interactive process, you decide to designate a temporary parking spot for her that is close to the entrance. This action would be considered a reasonable accommodation under the PWFA.
Scenario 2. A cashier at your restaurant has complained about her feet being swollen and that she is having a hard time standing at the cash register all day during her shift. You engage in the interactive process with her and decide that you can safely place a stool at the cash register, allowing her to sit instead of stand. This action would constitute a reasonable accommodation under the PWFA.
Scenario 3. A pregnant employee works with various chemicals on the manufacturing floor, some of which her doctor has determined are dangerous during pregnancy. After engaging in the interactive process, you determine that handling these chemicals is an essential function and cannot be removed from her job. Since you cannot accommodate her in her current position, you decide to move her to another position where she would not be required to handle dangerous chemicals. Here, the first proposed accommodation (removing the handling of chemicals) would not be a reasonable accommodation under the PWFA as employers are not required to remove essential functions of a job as part of an accommodation. However, temporarily moving the employee to another position that does not handle dangerous chemicals would be a reasonable accommodation pursuant to the PWFA.
How to Prevent Violations
To prevent violations of the new law, employers should not deny employment opportunities due to the need or perceived need for a pregnancy-related accommodation, and avoid forcing a pregnant employee to take leave, whether paid or unpaid, when there is a reasonable accommodation that can be provided to keep the employee working. Employers must also refrain from retaliating against a pregnant employee who requests accommodation, or from taking any adverse action against a pregnant employee, such as reducing pay, because they believe the employee may not be as productive due to their pregnancy.
So, what should an employer do if they have a pregnant employee requesting accommodation? Start by engaging in the interactive process. The PWFA does not specify the types of reasonable accommodations that may be required, however, the EEOC has issued some guidance on the types of accommodations that can be offered, such as:
- Ability to sit or drink water
- Access closer parking
- Flexibility in work hours
- Providing appropriately sized uniforms and safety apparel
- Additional break allowances for bathroom use, eating or resting
- Use of leave to recover from childbirth
- Exclusion from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy
Keep in mind that the PWFA does not apply to pregnancy itself, but to the “known limitations related to pregnancy, childbirth, or related medical conditions” according to the EEOC. If a pregnant worker does not require accommodation throughout most of their pregnancy, an employer does not need to force one on the employee simply because they are pregnant.
To ensure compliance with the PWFA, employers should review their accommodation policies and confirm that they are in line with the new law. Managers should also be trained to recognize a request for accommodation under the PWFA and how to take appropriate action.
If you are a client of FrankCrum and need assistance with making sure your business is compliant with the PWFA, reach out to your HR Consultant for assistance.