If you read one of our prior articles, you know that there are many things for employers to consider when preparing for an employee’s parental leave – from having policies in your employee handbook to ensuring that you are following federal and state laws.
Today, we want to share about the latest federal employment law which went into effect on June 27, 2023: the Pregnant Workers Fairness Act (PWFA). This federal law requires “covered employers” to provide “reasonable accommodations” in the workplace to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. The PWFA applies to accommodations only; the Pregnancy Discrimination Act (PDA), enacted in 1978, protects against discrimination toward pregnant workers.
Not sure what this means for you and your business? Continue reading and we’ll break it down for you.
First off, you must know who “covered employers” are. As defined by the law, covered employers include public and private sector employers with 15 or more employees, Congress, federal agencies, employment agencies, and labor organizations.
This definition of covered employers is consistent with the definition of covered employers of the Americans with Disabilities Act (ADA). Some consider the PWFA to be an expansion of ADA – that pregnancy is an “automatic” disability status without the need for an employee to have a doctor certify that the medical condition qualifies as a disability. Since a pregnancy has a definitive start and end date, we assume it to be a “temporary” disability.
As the act states, “reasonable accommodations are changes to the work environment or the way things are usually done at work.”
Reasonable accommodations could be a variety of things. Examples include: more frequent breaks to use the bathroom, rest, or eat; being able to bring a water bottle to have access to water throughout the day; receiving closer parking; having a flexible schedule; being excused from strenuous activities or exposure to chemicals or other potentially harmful substances; and, receiving time off, as necessary, before or after the baby is born.
It’s important to note that employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is defined as a significant difficulty or expense for the employer. Keep in mind that you must legally prove an undue hardship when claiming it. Therefore, the decision to go this route should not be made lightly.
So how does an employer know what reasonable accommodations they may need to make for a pregnant worker? Like the process used when considering ADA claims, an employer must engage in the interactive process.
The interactive process involves having a good-faith conversation with an employee to explore accommodations in order for them to perform the essential functions of the job effectively.
The interactive process should begin when you become aware of the need for an accommodation. An employee doesn’t need to specifically state, “I am requesting an accommodation” or even mention the PWFA or ADA. Bringing the pregnancy to the attention of the employer (which may be through a supervisor or manager), should be enough to trigger the process start.
Sometimes, the accommodation needed will be easy to recognize and provide. In other situations, it might not be as easy. In this case, you may need to analyze the job description with the individual to understand the essential duties of the job, the physical requirements, the employee’s limitations (including any specific limitations proposed by a medical professional), and what accommodations may help. (This is just one reason to maintain up to date job descriptions!) When considering a choice of potential accommodations, you don’t need to select the one preferred by the employee if there are other options that would work just as well.
Equal Employment Opportunity Commission
The Equal Employment Opportunity Commission (EEOC) enforces this law. Since it’s new for everyone, the EEOC will publish additional guidance for employers before the end of the year. Once that’s available, we recommend employers check back to see what new information may be provided which they should know and understand.
A 2022 survey conducted by the Bipartisan Policy Center and Morning Consult revealed that nearly a quarter of working mothers have considered leaving their jobs during pregnancy due to lack of accommodations or fear of discrimination. It is difficult in this economy for employers to find and retain employees. Many people are hopeful that this law will help mothers to feel supported in the workplace, and as a result, bolster the available labor pool.
As with any federal law, the PWFA does not replace any other federal, state, or local law which provides greater protection for pregnant workers. Some states have passed additional legislation which goes beyond the federal protections. This interactive map shows information on protections for pregnant and nursing mothers in each state.
In summary, here are the key takeaways from the Pregnant Workers Fairness Act.
- If you qualify as a covered employer, you need to understand your responsibilities and obligations. You also need to train your managers and supervisors to understand them.
- Know how to engage in open good-faith communication with an employee through the interactive process.
- Keep job descriptions up to date in case you need to consider a reasonable accommodation request.
- Ensure your Employee Handbook is up to date based on this new federal law.
At MBS, we value growth. Therefore, we commit to staying up to date on the ever-changing federal and state regulations which impact our clients. We regularly provide training and education on a variety of topics, as well as information in the form of monthly blog articles. We hope they are helpful and we thank you for taking the time to read them!