United States: Employer Alert: What To Expect From The New Pregnant Workers Fairness Act (Due Date: June 27, 2023)

A new federal law goes into effect June 27, 2023, related to covered employers' obligations to provide pregnancy accommodations to employees and job applicants.

As we previewed in our 2023 Federal Employment Law Forecast, Congress passed the Pregnant Workers Fairness Act (PWFA) as an amendment to the government funding bill, which President Biden signed on December 29, 2022. The law charges the EEOC with issuing regulations interpreting the PWFA, although the EEOC has not yet indicated when it will do so.

The PWFA requires employers with 15 or more employees to provide reasonable accommodations to qualified job applicants and employees with known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.

Before the PWFA, the federal Pregnancy Discrimination Act expanded Title VII's prohibition of discrimination on the basis of sex to encompass pregnancy discrimination. The Americans with Disabilities Act (ADA) provided protection to job applicants and employees with pregnancy-related medical impairments that constitute a disability under the ADA or in situations where accommodations were made for other nonpregnant workers. The PWFA now expands a covered employer's obligations to provide accommodations to pregnant applicants and employees. The PWFA also prohibits an employer from retaliating against an employee for requesting a reasonable accommodation or reporting or opposing unlawful discrimination under the PWFA.

Examples of reasonable accommodations that may be available to applicants and employees under the PWFA include a light-duty assignment that does not involve heavy lifting; allowing additional, longer, or more flexible breaks to eat, drink, rest, or use the bathroom; ergonomic accommodations; schedule changes (including shorter shifts, part-time work, or a later start time); providing time off for medical appointments; and providing leave for an employee who does not qualify for leave under the Family and Medical Leave Act to physically recover from childbirth. The PWFA essentially mirrors the protections provided for disabled employees under the ADA, but on a temporary basis. The PWFA also assimilates the ADA's interactive process and does not require modification of an employee's essential job functions.

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