Beginning June 27, 2023, the Pregnant Workers Fairness Act (PWFA) expands protections for pregnant employees and job applicants. The PWFA is a new federal law that requires private and public sector employers with at least 15 employees to provide “reasonable accommodations” to known limitations related to qualified employees’ and job applicants’ pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on business operations. The law further prohibits discrimination against qualified employees and job applicants because of their need for a pregnancy-related accommodation.

The Equal Employment Opportunity Commission (EEOC) is now accepting charges of discrimination under this statute for incidents that occur on or after June 27, 2023. In addition to accepting charges, the agency released educational resources, including tips for workers to request accommodations, a “Know Your Rights” video series, and a revised “Know Your Rights” poster required to be posted in most workplaces. Previously released resources include a Q&A on “What You Should Know about the Pregnant Workers Fairness Act,” an infographic for employers, and an informational poster about the PWFA.

WHO IS COVERED?

According to the PWFA, “covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.

A “qualified employee” is “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.” An employee or applicant shall still be considered qualified if (1) any inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated.

WHAT ARE THE KEY PROVISIONS? 

1. Reasonable Accommodations: Under the PWFA, employers must provide reasonable accommodations to pregnant workers, similar to that provided to employees with disabilities. The term “reasonable accommodation” has the same meaning as under the Americans with Disabilities Act (ADA) and should be construed in the same manner, including with respect to the requirement that the employer engage in an interactive process with the employee or job applicant concerning the potential accommodation. Examples of potential reasonable accommodations provided by the EEOC in recent guidance include:
   • closer parking,
   • appropriately sized uniforms and safety apparel,
   • flexible schedule,
   • permission to sit or drink water,
   • additional break time to use the bathroom, eat, and rest,
   • leave or time off to recover from childbirth, and permission to be excused from strenuous activities and/or activities that involve exposure to compounds that are not safe for pregnancy.
     A covered employer may not “require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided.”
     A covered employer may not require a qualified employee to accept an accommodation other than any reasonable accommodation arrived at through the interactive process.
     Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is a significant difficulty or expense for the employer.
2. Non-Retaliation: The PWFA prohibits employers from retaliating against employees and applicants who request or require reasonable accommodations due to pregnancy or related medical conditions. Specifically, “[n]o person shall discriminate against any employee because such employee has opposed any act or practice made unlawful” under the statute or “because such employee made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the PWFA. Further, it is “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of such individual having exercised or enjoyed, or on account of such individual having aided or encouraged any other individual in the exercise or enjoyment of, any right granted” under the PWFA.

WHAT ARE POTENTIAL DAMAGES AND REMEDIES FOR VIOLATION?

The PWFA empowers employees who believe their rights have been violated to file complaints with the Equal Employment Opportunity Commission (EEOC) or pursue legal action. Remedies for violations may include back pay, reinstatement, attorney fees, and compensatory and punitive damages.

The PWFA provides employers with a “good faith” defense to compensatory and punitive damages. Specifically, “if an unlawful employment practice involves the provision of a reasonable accommodation . . ., damages may not be awarded . . . if the covered entity demonstrates good faith efforts, in consultation with the employee . . ., to identify and make a reasonable accommodation that would provide such employee with an equally effective opportunity and would not cause an undue hardship on the operation of the covered entity.”

WHAT OTHER FEDERAL EMPLOYMENT LAWS MAY APPLY TO PREGNANT WORKERS? 

Other laws that apply to workers affected by pregnancy, childbirth, or related medical conditions, include:

1. Title VII of the Civil Rights Acts of 1964, as amended by the Pregnancy Discrimination Act of 1978 (“PDA”), which prohibits employment discrimination based on sex, pregnancy, or other protected categories (enforced by the EEOC);
2. The Americans with Disabilities Act (“ADA”) which, among other things, prohibits employment discrimination based on disability and requires employers to provide reasonable accommodations to persons with disabilities if the reasonable accommodation would not cause an undue hardship for the employer (enforced by the EEOC);
3. The Family and Medical Leave Act (“FMLA”) which provides unpaid leave for certain workers for serious health conditions (including any period of incapacity related to pregnancy or for prenatal care) and to bond with a new child (enforced by the U.S Department of Labor); and
4. The PUMP for Nursing Mothers Act (“PUMP Act”) which provides nursing mothers a time and private place to pump at work (enforced by the U.S. Department of Labor).

DOES PWFA SUPERSEDE SIMILAR CALIFORNIA STATE LAWS?

The PWFA does not replace California state laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. Such state laws that apply to workers affected by pregnancy, childbirth, or related medical conditions include the following:

1. State law providing employees temporarily disabled by pregnancy, childbirth, or a related medical condition with the ability to take a leave for a reasonable period of time not to exceed four months and thereafter return to work. During that time, the employer shall continue to provide the employee with the same level of health insurance coverage the employee received prior to taking leave. Government Code § 12945(a)(1)&(2).
2. State law requiring employers to provide reasonable accommodations for employees for conditions related to pregnancy, childbirth, or a related medical condition, if the employee so requests, with the advice of the employee’s health care provider. This may include a temporary transfer to a less strenuous or less hazardous position for the duration of the pregnancy. Government Code § 12945(a)(3).
3. State laws prohibiting discrimination in employment based on pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. Government Code § 12940.
4. The California Family Rights Act, which provides unpaid leave for certain workers for serious health conditions and to bond with a new child. Government Code § 12945.2.
5. State law requiring every employer to provide a reasonable amount of break time and a private area to accommodate an employee desiring to express breast milk for the employee’s infant child. Labor Code §§ 1030, 1031.

Employers are to comply with both state and federal laws to be the most protective of workers affected by pregnancy, childbirth, or related medical conditions.

WHAT STEPS SHOULD EMPLOYERS TAKE TO COMPLY WITH THE LAW? 

It is essential for employers to review and update their policies and practices to ensure compliance with the PWFA. Taking the following steps can help mitigate potential risks:

1. Review Policies: Assess your current policies to ensure they are in line with the requirements of the PWFA. Specifically, pay attention to reasonable accommodation policies, anti-retaliation policies, and complaint procedures.
2. Train Managers and HR Personnel: Educate managers and human resources personnel on the provisions of the PWFA, including the duty to provide reasonable accommodations and the prohibition of retaliation. Ensure they understand their responsibilities and can effectively handle requests for accommodation.
3. Update Employee Handbooks: Revise your employee handbook to include information about the PWFA, employee rights, and the process for requesting accommodations. Provide clear instructions on how employees should report any concerns or grievances related to pregnancy-related accommodations.
4. Maintain Documentation: Keep thorough records of accommodation requests, discussions, and any actions taken in response. Documentation can serve as evidence of compliance and help defend against potential claims.

The Pregnant Workers Fairness Act adds federal protections to the legal landscape surrounding pregnancy accommodations in the workplace. To ensure compliance and minimize legal risks, it is crucial to familiarize yourself with the requirements of the PWFA, review and update relevant policies, and educate your management team.

The above information is only an overview. We encourage you to consult with your RPLG attorney to ensure your organization is in compliance with the PWFA and other federal, state, and local laws related to the provision of accommodation and leave.

For further information, feel free to contact Rubin E. Cruse Jr. or Anastasia Bondarchuk.