Employers should always stay up to date with legal developments that affect their workplace and personnel. One such development is the Pregnant Workers Fairness Act (“PWFA”), which, in general, requires fair treatment of, and accommodations for, pregnant employees or those experiencing medical conditions related to pregnancy and childbirth.
The PWFA went into effect on June 27, 2023. The PWFA requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship”. On August 11, 2023, the EEOC issued a proposed rule to implement the PWFA.
Breaking Down the Law
Covered employers include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations. Types of reasonable accommodations set forth in the proposed rule include, but are not limited to, job restructuring; part-time or modified work schedules; more frequent breaks; acquisition or modification of equipment, uniforms, or devices; allowing seating for jobs that require standing or standing in jobs that require sitting; adjustment or modification of examinations or policies; permitting the use of paid leave or providing unpaid leave (including to attend health care-related appointments); assignment to light duty; telework; and temporarily suspending essential functions of the job.
The proposed rule provides a non-exhaustive list of examples of possible reasonable accommodation, including “ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.” This is not an exclusive list of accommodations. However, essentially, if a pregnant employee requires adjustments to their work tasks, schedule, or conditions due to pregnancy, childbirth or related medical conditions, the employer is obligated to make these accommodations. Employers are not required to make accommodations which would cause “undue hardship” on their operations, meaning accommodations that would cause significant difficulty or expense. The proposed rule adds additional factors that may be considered when determining if the temporary suspension of an essential function causes an undue hardship.
The proposed rule also provides examples of “related medical conditions” for which there is a duty to provide reasonable accommodation. Those examples include having or choosing not to have an abortion, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage and stillbirth, among other conditions.
Employers are prohibited from taking adverse actions against employees who request or accept accommodations under the PWFA. Employers are also prohibited from requiring an employee to accept accommodations without first having a discussion about it with the employer. The PWFA encourages communication between employers and covered employees to create a better workplace environment.
Key Takeaways for Employers
1. Reasonable Accommodations: Employers must engage in an interactive process with pregnant employees to determine suitable accommodations.
2. Interactive Process: The law emphasizes the importance of communication between employers and employees to determine appropriate accommodations. Collaboration and open dialogue are key.
3. Policies and Training: Employers should review their existing policies to ensure they are compliant with the PWFA. Training your HR team and managers about the Act’s provisions is extremely important.
Seeking Legal Guidance
The PWFA and its implementing (currently proposed) regulations are very complex. Real issues in an employment setting are fact-dependent, multi-faceted, and unique. However, non-compliance with the PWFA puts an employer at risk. The EEOC began accepting Charges of Discrimination under the PWFA on June 27, 2023 – the day the law became effective. To ensure your business remains compliant and fosters an inclusive work environment, it’s essential to consult legal experts who specialize in labor and employment law.
As an employer, staying informed about legal changes is pivotal to maintaining a successful and ethical business. The PWFA underscores the importance of treating employees fairly and providing appropriate accommodations. By seeking guidance from professionals like Berry Moorman P.C.’s Labor and Employment Law Practice Group, you can ensure your business remains compliant and continues to thrive in a diverse and inclusive work environment.
