The Pregnant Workers Fairness Act (“PWFA”), which became effective on June 27, 2023, is a new law requiring covered employers to provide reasonable accommodations for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation would result in an “undue hardship” to the employer. Examples of “related medical conditions” include but are not limited to morning sickness, miscarriage, lactation or the need to express breast milk, sciatica, pregnancy-induced hypertension, recovery from abortion, gestational diabetes, physical injuries from childbirth, and postpartum depression.
For purposes of the PWFA, a “known limitation” is broadly defined as a “physical or mental condition 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 specified in section 3 of the Americans with Disabilities Act …”
Covered employers who must comply with the PWFA include private and public sector employers with at least 15 employees, federal agencies, employment agencies, and labor organizations. It is important to note that the PWFA applies only to the reasonable accommodation of employees. The PWFA prohibits covered employers from doing the following:
- Requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
- Requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Denying a job or other employment opportunity to a qualified employee or applicant based upon the person’s need for a reasonable accommodation;
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding, such as an investigation; or
- Interfering with a person’s rights under the PWFA.
For claims arising prior to June 27, 2023, the Equal Employment Opportunity Commission (“EEOC”) will continue to process Title VII of the Civil Rights Act of 1964 (“Title VII”) and Americans with Disabilities Act (“ADA”) charges involving lack of accommodation related to pregnancy, childbirth, or related medical conditions. However, for all claims arising on or after June 27, 2023, the EEOC will analyze charges regarding accommodations for workers affected by pregnancy, childbirth, or related medical conditions under the new PWFA.
Some examples of reasonable accommodations that can be offered to employees affected by, or arising out of pregnancy, childbirth, or related medical conditions are 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.
The PWFA will not replace any federal, state, or local laws that provide more protections to workers affected by pregnancy, childbirth, or related medical conditions. For example, New Jersey employees are still protected by the New Jersey Law Against Discrimination and employers must be aware of their obligations to employees under that law and any other applicable federal, state, or local laws.
For employers, it is crucial to understand the PWFA to ensure compliance. If you are an employer seeking guidance regarding the PWFA or pregnancy-related reasonable accommodations in the workplace, please contact your CSG Law attorney or the authors of this alert.
About the Authors:
Courtney M. Gaccione is a member of CSG Law. She practices with the firm’s Employment Law Group, where she brings to bear more than 20 years of experience delivering strategic legal counsel in all areas of employee relations.
Nicole C. Tracy is an associate at CSG Law. She is a litigator and counselor with the firm’s Employment Law Group. Her litigation practice focuses on representing employers in employment, commercial and contractual disputes involving claims of discrimination and harassment, retaliation, wrongful termination, whistleblowing, wage and hour issues, and breach of restrictive covenants and non-disclosure agreements.