The Pregnant Workers Fairness Act is a new federal law set to take effect on June 27, 2023. It provides new protections to pregnant women in the workplace. These protections include the right to reasonable accommodations, breaks, childbirth recovery, and much more. Pregnant women are also protected from retaliation for requesting reasonable accommodation under the new law.

Both employees and employers need to understand what this new law entails. These protections protect pregnant workers and may result in substantial penalties to an employer who violates these protections. Whether you are an employee who faced discrimination or an employer looking to comply with the new law, understanding the Pregnant Workers Fairness Act will protect your rights.

What is the Pregnant Workers Fairness Act?

This new law is a civil rights bill designed to ensure pregnant and postpartum workers do not face discrimination related to their pregnancy. It guarantees them the right to reasonable accommodation for issues related to their pregnancy or post-pregnancy complications. It also seeks to protect these individuals from retaliation should they utilize the protections guaranteed under the act.

The Pregnant Workers Fairness Act (PWFA) is a federal law passed by Congress. It is not an individual state law. However, the new law protects the same employees as those covered by Title VII of the Civil Rights Act of 1964. This law obligates individuals who work for public or private employers with fifteen or more employees to follow these requirements. Small businesses with fewer than fifteen employees may be exempt from these requirements. The law also applies to most federal, state, and local government employees, regardless of the number of employees involved.

Prior laws left a significant protection gap for pregnant and postpartum employees. Before the PWFA, workers were only entitled to reasonable accommodations if they could show accommodations were granted to other similarly-situated people in their workplace. This bar was difficult and sometimes impossible for an employee to meet. Other acts required a pregnancy-related disability to request reasonable accommodations. The new federal law better protects pregnant employees.

Who Will Enforce the PWFA?

The PWFA will be enforced by the Equal Employment Opportunity Commission. That federal agency has been directed to create and issue regulations to implement the new Act within two years after its enactment. The regulations are supposed to provide examples of reasonable accommodations for pregnant women so employers understand what the law demands.

What Protections Does the Law Provide?

The Pregnant Workers Fairness Act requires employers to provide reasonable accommodations for pregnancy or childbirth. It also protects against realization by the employer when an employee utilizes their rights under the new law. To understand what this means, the definition of “reasonable accommodation” helps to explain:

“It shall be an unlawful employment practice for a covered entity to–

(1) not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;

(2) require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process . . . . ;

(3) deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee;

(4) require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or

(5) take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.”

The law guarantees the right to reasonable accommodation for many working women and pregnant people. Employers must grant these protections in most cases.

Examples of Reasonable Accommodations Under the PWFA

The Equal Employment Opportunity Commission is required to guide employers on what constitutes reasonable accommodations under the new law. This guidance can involve assisting an employer in deciding what types of accommodation requests they should grant.

Some examples of reasonable accommodations include, but are not limited to:

• Permitting light-duty requirements, or assistance with lifting and manual labor
• Longer, additional, or more flexible breaks for eating, resting, or bathroom breaks
• Modifying existing facilities to make them easier to use, such as relocation or additional seating
• Changing the employee’s work schedule to accommodate changes, such as morning sickness
• Private space (not a bathroom) to lactate or pump breast milk
• Time off for recovery from childbirth, mastitis, and other pregnancy-related complications
• Temporary transfer to a less physically demanding job
• Changes to devices, equipment, or the workstation to make the area easier for a pregnant employee
• Changes to the uniform to accommodate an employee’s changing body, such as permitting maternity pants
• Flexible schedules to accommodate prenatal and postnatal appointments
• Changes to food or drink policies so a pregnant employee can have water or food easily accessible

These are not the only accommodations that could be considered reasonable under the PWFA. Employers should make a good-faith effort to accommodate a pregnant employee’s needs.

Prohibitions Under the PWFA

Under the Pregnant Workers Fairness Act, employers with fifteen or more employees must do or refrain from the following:

• Make reasonable accommodations for applicants and employees affected by a known limitation related to childbirth, pregnancy, or a related medical condition (absent an undue hardship on the employer).
• Not deny employment opportunities to employees or applicants based on the need for reasonable accommodations.
• Not require employees or applications to accept unnecessary accommodation.
• Not require an employee to take paid or unpaid leave if another reasonable accommodation is appropriate.
• Not take any adverse action in employment conditions, terms, or privileges because of a request or accommodation.

Violations of the PWFA may entitle a worker to a claim of damages against the employer and the right to reasonable accommodation.

When an Accommodation is Not Permitted

Employees have the right to reasonable accommodations. When the request is unreasonable, the employer is not required to grant it if it would create an “undue hardship” for the employer to provide. Undue hardship is defined the same as in the Americans With Disabilities Act. An “undue hardship” is a significant difficulty or expense caused by the requested accommodation relative to the employer’s operations, resources, and circumstances.

For example, imagine an employee working for a multinational corporation worth billions of dollars. It would likely not be an undue hardship for the company to temporarily assign a warehouse worker to a light-duty position. That employer has the resources to find an alternative and make reasonable accommodations for the employee.

When is an Accommodation Unreasonable?

The definition of undue hardship does not provide a great idea of what types of accommodations might be considered unreasonable. Factors that may make a request unreasonable might include:

• The accommodation would require a significant expenditure of resources in a company with limited resources (especially small businesses).
• The accommodation would remove essential job functions from the position.
• The accommodation would place an unreasonable burden on another employee or displace that other employee.
• The accommodation would unreasonably disrupt business operations.

What constitutes an undue hardship is determined on a case-by-case basis. These factors and many others will decide whether the request is reasonable or whether it creates issues that make the accommodation impermissible. However, employers should work to find a less burdensome alternative, not simply deny an accommodation altogether. A good faith effort to find an alternative may significantly affect how the employer’s actions are viewed in denying a requested accommodation.

How to Request Accommodation Under the Pregnant Workers Fairness Act

If an employee wants to request accommodation under the PWFA, they and their employer must have a good-faith conversation about it. This conversation should seek to address the employee’s concerns and their specific request. Employees may make a specific accommodation request or describe their challenges and seek a resolution from the employer.

Under the new law, this good-faith conversation is called the “interactive process.”

• The interactive process may occur by phone, email, in person, or other methods.
• A worker doesn’t need to use specific words or mention the Pregnant Workers Fairness Act to request a reasonable accommodation. The employer must follow the law regardless of whether the employee knows the protections they are owed.
• The employer must promptly respond to the request and engage in the interactive process.

What the Interactive Process Should Include

The interactive process should be a discussion between the employer and employee (or applicant) about what accommodation is necessary and appropriate for the situation. Both parties should approach each other to agree on a solution. The employee should keep requests reasonable. The employer should attempt to make any accommodation they can that does not create an undue hardship.

This process applies to applicants and employees. With pregnant or postpartum applicants, this discussion should occur after an offer of employment has been made to the applicant. Before the offer is made, discussions could be considered evidence that the accommodation request led to a loss of employment opportunity, something an employer should not do, nor should they risk the appearance of it.

Penalties for Violating the Pregnant Workers Fairness Act

If an employer violates the protections of the PWFA, it could be subject to sanctions and many other types of damages. Violations could include failure to provide appropriate accommodation, discrimination against a pregnant employee or applicant, or even retaliation against the employee. The Act provides remedies to an employee that has faced discrimination in violation of the PWFA, including:

• Lost pay
• Interest
• Compensatory damages related to the discrimination
• Punitive damages
• Costs
• Reasonable attorneys’ and experts’ fees
• Injunctive relief where appropriate
• Statutory damages and fines against the employer

These penalties could be substantial. Employees may be entitled to significant compensation if they face discrimination due to pregnancy or postpartum limitations. Employers should strive to reasonably accommodate requests to protect employees’ rights and avoid potential liability.

Retaliation Claims in PWFA Cases

The PWFA prohibits retaliation against individuals who want to exercise their rights under the Act. Retaliation against an employee is often an adverse action that punishes the employee for requesting a reasonable accommodation.

These actions by the employer may include the following:

• Coercion or intimidation by the employer
• Threat or interference with employment
• Adverse employment actions such as termination, demotion, or involuntary changes of position
• Adverse actions against those who report violations (whistleblowers) of the PWFA

Retaliation claims may be filed by the employee or others who were discriminated against because they helped an employee seek reasonable accommodation. A serious retaliation claim may entitle the employee to substantial compensation, such as those listed above, for violations of the Act. The EEOC takes retaliation claims very seriously and will investigate claims under the PWFA when it becomes effective.

What Employers Should Do To Prepare for the New Law

To prepare for the new law, employers should create a clear process for an employee requesting reasonable accommodation. This process should meet the “interactive process” requirements, which encourages a good-faith dialogue with the employee. The employer should be mindful that the new law grants additional and broader protections for pregnant and postpartum individuals. The law no longer requires a pregnancy-related disability; being pregnant or postpartum may entitle the employee to reasonable accommodation.

Companies should train their human resources department and supervisors about how to address accommodation requests and how to avoid retaliation. Pregnant or postpartum applicants should receive a reasonable accommodation dialogue after they receive an employment offer and if the applicant expresses they are somehow limited in their ability to perform the job duties.

Speak with an Employment Law Attorney

The Pregnant Workers Fairness Act is a complex employment law that places substantial burdens on employers and provides significant protections to employees. A knowledgeable employment law attorney at Morris & Dewett understands this new Act and how best to prepare for it. Call (318) 221-1508 or contact us online for help.