On June 27, 2023, the recently passed Pregnant Workers Fairness Act (“PWFA”) will take effect and will prohibit employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. The PWFA applies to all employers with 15 or more employees, including private employers and many state and federal public entities. A qualified employee under the Act is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, as long as the inability to perform the essential function is temporary due to pregnancy childbirth, or a related medical condition.
Specifically, the PWFA declares that it is an unlawful employment practice to:
- Fail to make reasonable accommodations to known limitations of qualified employees unless the accommodation would impose an undue hardship on an entity’s business operation;
- Require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
- Deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
- Require such employees to take paid or unpaid leave if another reasonable accommodation can be provided;
- Take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations; or
- Retaliate against individuals engaging in protected activity under the Act.
It is important to note that the PWFA is different than the current Pregnancy Discrimination Act because the Pregnancy Discrimination Act does not require accommodations for pregnant workers; it prevents employers from taking adverse action because of pregnancy. The PWFA borrows its framework from the protections provided to disabled workers under the Americans with Disabilities Act (“ADA”), and it uses the same definition of “reasonable accommodation” and “undue hardship” as the ADA. In the next two years, the Equal Employment Opportunity Commission will issue regulations related to the PWFA that provide examples of reasonable accommodations. In the meantime, covered employers should be careful to evaluate whether pregnant workers may require reasonable accommodation to perform their jobs.
If you have any questions regarding how the PWFA affects your business and its current employment practices or policies, please contact your Bose McKinney & Evans Labor and Employment attorney.