By: Mariam El Hasan, Esq. & Rachel Diab, JD Candidate 2024
On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) went into effect. This new federal law requires covered employers to provide reasonable accommodations for employees and applicants who have known limitations related to pregnancy, childbirth, or related medical conditions. It also protects employees from discrimination, retaliation, and interference based on their need for an accommodation. A worker affected by pregnancy, childbirth, or related medical conditions can now bring charges before the Equal Employment Opportunity Commission (EEOC) against a covered employer for any violation of this act that occurred on or after June 27, 2023.
In addition, the PWFA prohibits covered employers from:
- Requiring an employee to accept an accommodation without first discussing the accommodation with the employee.
- Requiring an employee to take leave if another reasonable accommodation would allow the employee to continue working.
- Denying a job or employment opportunity to an applicant or employee due to their need for a reasonable accommodation.
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA.
- Interfering with any individual’s rights under the PWFA.
Who is Considered a “Covered Employer” under the PWFA?
A “covered employer,” under the PWFA, is any private or public sector employer with at least 15 employees, including Congress, federal agencies, employment agencies, and labor organizations.
Who is Considered a “Protected Individual” under the PWFA?
An individual is protected under the PWFA if they are an employee or applicant of a covered employer, and have known limitations related to pregnancy, childbirth, or related medical conditions. A known limitation is a physical or mental condition that the employee or their representative has communicated to the employer, whether or not it meets the definition of disability under the Americans with Disabilities Act (ADA).
What Are Reasonable Accommodations under the PWFA?
Reasonable accommodations are adjustments or modifications made to a job or work environment that help an employee fulfill their duties, but do not cause an employer significant difficulty or expense. This can include changes to the way or time work is completed, as well as adjustments to the workplace itself. Some examples of reasonable accommodations are allowing the employee more flexible hours, giving additional break time, providing a closer parking space, supplying appropriately sized uniforms and safety apparel, and excusing the employee from strenuous activities.
The PWFA requires covered employers to engage in an interactive process with the employee to determine an effective accommodation that does not impose an undue hardship on the employer. The employer cannot compel an employee to accept an accommodation without first discussing it with them, or force them to take leave if another reasonable accommodation would allow them to continue working. The employer also cannot deny a job or employment opportunity to an applicant or employee due to their need for a reasonable accommodation. Additionally, the employer cannot require an employee to accept an accommodation that is unnecessary for them to perform their job.
How Does the PWFA Relate to Other Federal or State Laws?
The PWFA does not replace other local, state, or federal laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that provide accommodations for such workers.
There are several federal laws that continue to protect workers affected by pregnancy, childbirth, or related medical conditions. These include:
- Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, including pregnancy, childbirth, and related medical conditions.
- The Americans with Disabilities Act, which prohibits discrimination based on disability and requires covered employers to provide reasonable accommodations for qualified individuals with disabilities.
- The Family and Medical Leave Act, which provides eligible employees with unpaid, job-protected leave for certain family and medical reasons.
- Section 7 of the Fair Labor Standards Act, as amended by the Providing Urgent Maternal Protections for Nursing Mothers Act (a part of the PWFA), which requires employers to provide reasonable break time and a private place for nursing mothers to express breast milk.
Employers should be mindful of their obligations and rights under the PWFA, and be prepared to engage in an interactive process with their employees to provide reasonable accommodations, unless they can show an undue hardship. By doing so, employers can avoid legal liability, retain valuable employees, and promote a positive workplace culture.
Additional Employer Resources
For more information or assistance with the Pregnant Workers Fairness Act, please contact Mariam El Hasan.
Mariam El Hasan is an Associate in Leech Tishman’s Employment & Labor Practice Group. Mariam is based in the firm’s Los Angeles office, and can be reached at 424.738.4400 or firstname.lastname@example.org.
Rachel Diab, JD Candidate 2024, Loyola Law School and Leech Tishman Summer Associate, contributed to the research and drafting of this article.
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