Congress recently passed the Pregnant Workers Fairness Act (PWFA), which will require employers to provide reasonable workplace accommodations for pregnant employees, unless it presents an undue hardship to the employer. The PWFA seeks to fill the gap between Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA) to ensure that pregnant workers are able to continue working their jobs with reasonable accommodations for physical or mental conditions related to pregnancy and childbirth.
The PWCA will take effect on June 27, 2023. Prior to the creation of the PWFA, there were already several laws in effect that apply to the treatment of pregnant employees. These regulations include Title VII and the Pregnancy Discrimination Act (PDA), which prohibit gender discrimination based on pregnancy, childbirth, and other related conditions, and the ADA which requires employers to provide reasonable accommodations to employees with certain conditions related to pregnancy that qualify as a disability. The PWFA does not replace or supersede these existing regulations, rather it provides additional protection for pregnant workers who may need special accommodations but do not have a condition that qualifies as a “disability” under the ADA.
What is Required Under the Pregnant Workers Fairness Act?
The PWFA will apply to employers with 15 or more employees and will require such employers to provide reasonable accommodations to pregnant employees for a “known limitation related to pregnancy, childbirth, or related medical conditions.” This is a broader definition than that of a “disability” under the ADA. The PWFA requires the Equal Employment Opportunity Commission (EEOC) to issue regulations and guidance regarding what conditions will be covered, but it has not yet done so. Despite the lack of official guidance from the EEOC, legal professionals have speculated that covered conditions may include not only active pregnancy conditions such as morning sickness, gestational diabetes, and pregnancy-induced hypertension, but also postpartum conditions such as recovery from childbirth, recovery from a miscarriage, and postpartum depression. Some examples of reasonable accommodations could include closer parking, flexible hours, allowing the employee to have water at their station, allowing employees to be seated, excusing the employee from strenuous work duties, and allowing the employee additional break time to use the restroom to eat or rest.
Employers will not be required to provide an accommodation if it would impose an undue hardship on the employer. However, employers must engage in an interactive discussion with the employee and use their best efforts to provide a solution that works for both the employer and the employee. It is an unlawful employment practice to fail to provide an accommodation when doing so would not impose an undue hardship on the employer. It is also an unlawful practice to require an employee to take leave, whether paid or unpaid, if there is a reasonable accommodation available that would allow the pregnant employee to keep working.
How Should Employers Prepare?
Employers should closely monitor the EEOC’s proposed regulations and update their policies accordingly. The Employment and Labor attorneys at Critchfield be happy to assist employers in updating their policies and to answer questions on how to comply with the PWFA as the EEOC updates its official guidance.
 U.S. Equal Employment Opportunity Commission, What You Should Know About the Pregnant Workers Fairness Act, available at https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act#:~:text=The%20Pregnant%20Workers%20Fairness%20Act%20(PWFA)%20is%20a%20new%20law,employer%20an%20%E2%80%9Cundue%20hardship.%E2%80%9D
 National Women’s Law Center, Know Your Rights: Pregnant Workers Fairness Act, available at https://nwlc.org/resource/know-your-rights-pregnant-workers-fairness-act/#:~:text=The%20PWFA%20guarantees%20workers%20experiencing,pregnancy%2C%20childbirth%2C%20or%20related%20medical
 House Committee on Education and Labor, Report on H. Rept. 117-27 – Pregnant Workers Fairness Act, available at https://www.congress.gov/congressional-report/117th-congress/house-report/27/1?overview=closed.