As of June 27, 2023, pregnant employees will enjoy greater protection under the recently passed Pregnancy Workers Fairness Act (PWFA).
Who Does It Apply To?
This provision will apply to "covered employers" with 15 or more employees and protects both female employees and "qualified" applicants. The PWFA states that a "qualified" employee (or applicant) is one who, with or without reasonable accommodation, can perform the essential functions of her position. By way of exception, she could be considered "qualified" if.
(a) the inability to perform his or her functions is for a temporary period;
(b) if that essential function can be performed in the foreseeable future; or
(c) if the inability to perform the functions can be reasonably accommodated.
Reasonable Accommodation, Undue Hardship, and Known Limitation Terms
In essence, the PWFA promotes nondiscrimination on the basis of reasonable accommodation related to pregnancy. To that end, the PWFA states that it would be an unlawful practice for an employer to refuse to provide "reasonable accommodation" to a qualified employee's "known limitations" related to pregnancy, childbirth or related medical conditions unless the employer can demonstrate that such accommodation would impose an "undue hardship" on the operation of its business. The PWFA indicates that both the term "reasonable accommodation" and the term "undue hardship" have the same meanings given to them by the Americans with Disabilities Act ("ADA"). On the other hand, the PWFA states that "known limitation" is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, which the employee (or a representative of the employee) has communicated to the employer, whether or not such condition meets the ADA definition of disability.
Prohibitions
The PWFA provides that it is unlawful for an employer to require a "qualified employee" to accept an accommodation other than any reasonable accommodation agreed to. Nor may an employer deny employment opportunities to a "qualified employee" if such denial is based on the need to make reasonable accommodations because of pregnancy. Similarly, an employer may not require a "qualified employee" to take a leave of absence, with or without pay, if another reasonable accommodation can be provided. Finally, the PWFA states that an employer may not take adverse action in terms, conditions or privileges of employment against a "qualified employee" for requesting or using a reasonable accommodation because of pregnancy.
Equal Employment Opportunity Commission (EEOC)
It should be noted that the PWFA provides that the Equal Employment Opportunity Commission (EEOC), on or before December 23, 2023, shall issue regulations providing examples of "reasonable accommodations" that address known limitations related to pregnancy, childbirth or medical conditions. As of today, the EEOC has not issued the required regulations.
Final Considerations
We reiterate that the PFWA will be effective as of June 27, 2023. To ensure compliance with the provisions of the PFWA, we recommend informing "qualified" female employees or applicants about this new law, providing training to management and human resources personnel, as well as updating employment handbooks, policies and forms. In addition, we recommend periodically reviewing the EEOC website for any new developments on this issue.
