This is the 1-year anniversary of the passage of the Federal Pregnant Workers Fairness Act [“PWFA”], which went into effect on June 27, 2023. The EEOC has issued guidance on how it works, and final rules are due out any minute. What should employees know?
The PWFA prohibits employers from requiring employees to take leave if another accommodation would let them keep working, denying employment opportunities on the basis of the need for a reasonable accommodation, and interfering with or retaliating against employees who are exercising their PWFA rights.
The PWFA requires employers with 15 or more employees to provide reasonable accommodations to workers with limitations related to pregnancy, childbirth, or related medical conditions. Unlike previous pregnancy discrimination statutes, these requirements apply even if the pregnancy is uncomplicated or the limiting condition existed prior to the pregnancy. Additionally, an employee who is “temporarily” unable to perform the essential functions of the job is still considered “qualified” to do the job if they could perform the essential functions “in the near future.” No one knows exactly what these terms mean, so we’re waiting for the regulations to give some indication.
Employers only have to accommodate “known limitations,” which means if you don’t tell the boss about the limitation, and they can’t see it, they don’t have to accommodate it. Technically, you don’t have to say “PWFA,” but it might be good idea to use the term to make sure the HR person knows what you’re talking about. Also, while there is some duty for the employer to detect obvious limitations, you shouldn’t count on the boss going out of his way to allow you to sit/stand or take frequent breaks if you don’t explain why you need them.
The EEOC says that four accommodations should be almost always granted: carrying and drinking water as needed, additional bathroom breaks, sitting and standing, and breaks to eat and drink. The key word here is “almost.” Remember, “reasonable” means that the accommodation does not impose an “undue hardship” on the employer, so if the requested accommodation is going to cost a lot of money or be disruptive to operations, it might not be considered “reasonable.”
Do some of these requirements sound familiar? That’s because in some cases, pregnant workers had protections under Title VII and the ADA (as well as various state and local laws). But the PWFA enhances, broadens, and clarifies those protections.
This is a new law with new regulations, so contact a reputable workplace attorney to make sure you have up to date information about your rights under the Federal Pregnant Workers Fairness Act!
