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Pregnant Workers Fairness Act (PWFA) takes effect June 27, 2023

March 9, 2023

By Alan C. Blanco, Esquire

The Pregnant Workers Fairness Act (PWFA) is closely modeled on the American with Disability Act (ADA) and expands the protections of pregnant workers that were passed under the Pregnancy Discrimination Act (PDA) in 1978, which made it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions. As interpreted by the Supreme Court, the PDA had not required employers to provide reasonable accommodation to pregnant workers unless the pregnant worker could prove that the employer accommodated other employees who were similar in their ability or inability to work, which could be difficult to do.  Under the ADA, pregnancy related conditions could qualify as a disability, but not all pregnancy related conditions could meet this threshold.  The PWFA is designed to close some of these gaps in protection for pregnant workers.

The PWFA had been introduced in every Congress since 2012.  It was signed into law by President Biden as part of the Omnibus Spending Bill at the end of 2022.  Other federal laws, including the PDA, the ADA, and the FMLA, and some state laws, also provide selected protections for pregnant workers. The PWFA is not intended to supplant other laws that might be more protective.

The PWFA requires covered employers to provide reasonable accommodation to qualified employees who have known limitations related to pregnancy, childbirth, or related medical conditions. Covered employers generally include private employers of 15 or more employees, and certain other employers.  Qualified employees are employees or applicants who can perform essential functions of the position, with or without reasonable accommodation.  An employee must be provided reasonable accommodation if they cannot complete an essential function if the inability to perform the essential function is temporary, the employee can perform the function in the near future, and the inability can be reasonably accommodated.  The phrase ‘‘known limitation’’ covers physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability under the ADA.  As with the ADA, an employer may defend if it can show that a reasonable accommodation would place an undue hardship on it. Also as with the ADA, the employer and employee should engage in an interactive process to determine appropriate reasonable accommodations. The PWFA makes it unlawful for an employer to require an employee to take paid or unpaid leave if another reasonable accommodation can be provided.

The EEOC will issue proposed regulations clarifying requirements of the PWFA. The regulations are to include examples of reasonable accommodations that may be provided.  Commentators indicate that such accommodations may include:

  • Limited lifting;
  • Flexible breaks to eat, drink or use the restroom;
  • A private space (not a bathroom) and breaks for lactation;
  • Accommodating maternity clothing for those places with a dress code or uniform;.
  • Flexibility for doctor appointments;
  • Other accommodations.

Enforcement will be through the EEOC commencing starting when the law takes effect, June 27, 2023, with the possibility of privately pursuing legal action following an EEOC investigation.

If you have questions about pregnancy in the workplace, contact us online or call (412) 338-1193.

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