In December of 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) into law. The PWFA is a federal law requiring employers to make reasonable accommodations for employees with a known limitation due to pregnancy, childbirth, or related medical conditions. The law goes into effect on June 27, 2023, and all employers need to understand the extent of their legal obligations and how to stay in compliance with this new legislation.
Who is Covered by the PWFA?
This new federal law was enacted to provide pregnant workers with the right to receive reasonable workplace accommodations to help them perform their jobs while protecting their health and the wellness of their unborn children. The PWFA protects workers who have known limitations and need accommodation because they are pregnant, have just given birth, or need an accommodation because of medical conditions related to their pregnancy. The PWFA covers all employees working for employers over 15 employees. According to the terms of the PWFA, employers are required to offer reasonable accommodations unless doing so would cause an “undue hardship” to the employer’s operations. An “undue hardship” would cause the employer significant difficulty and/or expense.
Medical Conditions Related to Pregnancy or Childbirth
The PWFA requires employers to accommodate workers experiencing limitations due to “pregnancy, childbirth, or related medical conditions.” While the PWFA does not define “related medical conditions,” the language used in the Pregnancy Discrimination Act describes “medical conditions” as illnesses, symptoms, and complications that an employee is experiencing as a result of pregnancy or childbirth. Additional examples of “related medical conditions,” according to the PWFA, include the following:
- Morning sickness
- Physical injuries from childbirth
- Postpartum depression
- Pregnancy-related carpal tunnel syndrome
- Miscarriage
- Gestational diabetes
- Pregnancy-induced hypertension
- Sciatica
- Lactation
- Recovery from abortion
The PWFA Covers Accommodations Only
Existing laws enforced by the EEOC make it illegal for employers to terminate or otherwise discriminate against workers based on pregnancy, childbirth, or other related medical conditions. The new legislation established by the PWFA does not replace federal, state, or local laws that offer more protection to workers affected by pregnancy, childbirth, or related medical conditions. The specifications of the PWFA apply only to accommodations and do not address discriminatory issues.
Federal Laws That Apply to Pregnant Workers
Laws enforced by the EEOC that apply to workers affected by a pregnancy, childbirth, or pregnancy-related medical conditions, include:
- Title VII:
§ Protects an employee from discrimination based on pregnancy, childbirth, or other related medical issues.
2. Americans With Disabilities Act (ADA):
§ Protects workers from discrimination based on disability and
§ Requires employers to provide reasonable accommodations for workers with a disability if the reasonable accommodation would not cause an undue hardship for the employer.
§ While pregnancy is not a disability under the ADA, some pregnancy-related issues may be considered disabilities under the law.
Laws enforced by the U.S Department of Labor that apply to workers affected by a pregnancy, childbirth, or related medical conditions, include:
3.The Family and Medical Leave Act of 1993
§ Provides covered employees with unpaid, job-protected leave for specific family and medical reasons; and
4.The PUMP Act
§ Provides workplace protections for lactating employees to express breast milk at work.
Communicating Workplace Accommodation Policies
When addressing the company’s plans for accommodating pregnant workers, employers should include information about their processes, procedures, and policies in their employee handbook and update their anti-discrimination policy. The management team and the Human Resources department should also be ready to discuss all relevant policies and practices with an employee who requests reasonable accommodation.
What are Reasonable Accommodations?
Employers must work with employees to provide reasonable accommodation that effectively addresses the employee’s limitations. Employers should first engage in an interactive process with the employee to discuss the worker’s specific needs. The House Committee on Education and Labor Report on the PWFA have provided examples of reasonable accommodations. Some of these include providing employees with a flexible work schedule, a closer parking space, additional break times, or being excused from strenuous activities. Other examples of reasonable accommodations may include:
1. A no-heavy-lifting accommodation
2. Access to a private lactation room
3. Rearranging the employees’ schedule to allow time for doctor’s appointments.
4. Time off for recovery following childbirth.
Further Analysis by the EEOC is Indicated
When an employee requests an accommodation, they ask the employer to provide personalized changes that will allow them to stay safe while performing their duties. While the PWFA does not specify the types of reasonable accommodations that may be required, the EEOC has indicated that it will begin to “analyze charges regarding accommodations” for affected workers under the PWFA after the Act goes into effect on June 27, 2023.
Actions Prohibited by the PWFA
According to the terms of the PWFA, covered employers are prohibited from the following:
- Requiring a worker to accept accommodation without first discussing the type of accommodation the worker needs.
- Denying a job or an employment opportunity to a qualified worker or applicant based on the worker’s need for accommodation.
- Requiring a worker to take a leave of absence when another reasonable accommodation could have been provided that would have allowed the worker to stay on the job.
- Retaliating against a worker or applicant for reporting or expressing opposition to unlawful discrimination under the PWFA or participating in a PWFA proceeding or investigation.
- Interfering with a worker’s or applicant’s legal rights under the specifications of the PWFA.
When Will the EEOC Accept Charges Pertaining to the PWFA?
The EEOC will begin accepting charges under the terms of the PWFA on June 27, 2023. For the PWFA rules to apply, the employee’s allegations against the employer must have occurred on or after June 27, 2023. Pregnant workers, or those with pregnancy-related limitations, who requested accommodation before June 27th may have the right to receive accommodation under other federal or state laws. After June 23 of this year, the EEOC has indicated that the agency will begin to analyze legal claims regarding accommodations for affected workers under the PWFA after the Act goes into effect.
Employers Must Abide by the Terms of the PWFA
It is essential for all employers to understand their legal obligations and their responsibilities to their employees. Employers can obtain more information about the PWFA from The Equal Employment Opportunity Commission (EEOC): “What You Should Know About the Pregnant Workers Fairness Act.”
To prepare for the June 27, 2023, effective date, employers should consider taking the following actions to ensure that they are in full compliance with the PWFA:
- Ensure that all accommodation policies and procedures comply with the PWFA.
- Ensure that all accommodation policies comply with applicable state laws.
- Update the company handbook with PWFA accommodation policies and procedures.
- Provide all necessary training to the management team and human resources professionals to ensure their understanding of the PWFA requirements.
- Ensure that management and human resources anticipate potential requests for accommodation under the PWFA.
- Define the types of accommodations that the employer could potentially provide to pregnant workers.
Conclusion
§ The PWFA Guarantees Reasonable Accommodations
The PWFA was passed to ensure pregnant workers can continue performing their jobs. The PWFA specifies that employers must provide reasonable accommodations that address the employees’ limitations, including physical or mental conditions related to pregnancy and childbirth. According to the PWFA, employers must engage in an interactive discussion with the worker to determine the parameters of reasonable accommodation.
§ Other Laws Already Provide Protection
Many state and local laws already provide protection and accommodation requirements for pregnant and nursing workers. Per Federal statute, the Pregnancy Discrimination Act of 1978 has already prohibited discrimination by employers based on pregnancy, childbirth, or other pregnancy-related medical conditions. The PUMP Act and the PWFA do not preempt the state and local laws that often provide even greater protections to this class of workers.
§ Employers Should Ensure Their Compliance
While many employers already have company policies in place for pregnancy-related issues, and they have established the accommodations required for nursing workers, employers should still take the time to review and analyze their policies to ensure they are compliant with the PWFA. In addition to making necessary updates to company policy, employers will also want to ensure that their management team and human resources department have been trained to handle pregnancy-related accommodation requests in the workplace.
Schedule a Free Consultation with Treaty Oak Now
If you are an employer and need assistance to ensure compliance with the Pregnant Workers Fairness Act (PWFA), call Treaty Oakfor help now. Our team is here for you and ready to assist you. Email us or call 512 298 2346.
Or if you are an employer seeking to resolve a labor and employment issue, protect yourself, your employees, and your business by contacting us at Treaty Oak. Our lawyers can help you navigate the complexities of your legal matter from inception to resolution. Our attorneys can also assist you in developing the following:
· PWFA policies and procedures for accommodation
· Unlimited vacation policies
· Employment contracts
· Employee handbooks
· Performance evaluation materials
· Drafting legal agreements
· Workplace investigations
· Leadership training
· Harassment prevention training modules
About Natalie Lynch: Founding Attorney
Natalie R. Lynch, a business and employment law attorney in Austin, Texas, has demonstrated expertise in workplace investigations, employment law, and entity formations. Credentialed through the Association of Workplace Investigators (AWI), Natalie is the only consulting and credentialed expert in Central Texas who investigates allegations of harassment, discrimination, and hostile work environment. Having lived abroad in Ghana and Spain, Natalie brings unique perspectives to help organizations achieve business nationally and internationally. As a credentialed dispute resolution mediator, she routinely collaborates with general counsel, internal and external counsel, employment litigators, employment generalists, and senior human resources professionals.
Natalie is the outgoing Chair of the Austin Bar Association’s Labor and Employment Section. It serves in leadership roles for the Texas State Bar Association, including the International Bar and Animal Law Sections. In Colorado, Natalie was a two-term president of the Aurora Bar Association, the first recipient of the Colorado Bar Association’s Future Leaders award, and a member of the Bar Association’s Executive Council. With her extensive business background and solution-focused, purposeful, no-nonsense approach, Natalie excels at:
§ Business formation
§ Transactional matters
§ Employment law
§ Workplace discrimination matters.
§ Contracts
§ Employment litigation avoidance
§ Customized harassment prevention training modules
As a credentialed AWI investigator, Natalie has extensive training in interviewing techniques and a unique and beneficial skill set in the legal field. Natalie insists that each investigation represents the standards of quality and litigation avoidance on which she built Treaty Oak. Before becoming a business owner, Natalie prepared by obtaining her undergraduate degree in international studies from Texas A&M University and her J.D. from South Texas College of Law. She also studied at the University of Denver. Natalie is licensed to practice law in Texas, Wyoming, and Colorado, and she holds certifications from Women-Owned Business (WBE), Minority-Owned Business (MBE), and Historically Under-Utilized Business (HUB). She is one of the founders of Lynch Learning, a compliance x culture organization. Her presence in Wyoming can be seen here.
Resources Used
EEOC:
SHRM
U.S. Department of Labor:
· Break Time for Nursing Mothers
· Employment Protections for Workers Who Are Pregnant or Nursing
FLSA
· FLSA Protections to Pump at Work | U.S. Department of Labor (dol.gov)
USBC
