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Effective June 27, 2023, the Pregnant Workers Fairness Act (PWFA) will require employers with at least 15 employees to provide reasonable accommodations for qualified employees with pregnancy-related restrictions unless doing so would impose an undue hardship on the employer.[1]

• Isn’t pregnancy discrimination already illegal?

While pregnancy discrimination is already illegal under Title VII of the Civil Rights Act of 1964, as amended Pregnancy Discrimination Act (Title VII), and the Americans with Disabilities Act (ADA)[2], the PWFA adds more protection for workers with pregnancy-related restrictions in the workplace.

Several states already require the same or similar protections for pregnant workers as those set forth in the PWFA. As a result, whether the PWFA changes the status quo for an employer largely depends upon the state(s) where that employer does business.

• What is required under the PWFA?

Under the PWFA, covered employers are required to provide reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee unless doing so would pose an undue hardship. Employers are required to engage in an individualized interactive process to determine the appropriate reasonable accommodation for the covered employee.

The PWFA specifies that the terms “reasonable accommodation” and “undue hardship” have the same meaning as those terms are used in the ADA. A reasonable accommodation is a change to the work environment provided by the employer to enable the covered employee to enjoy equal employment opportunities to similarly situated workers without the pregnancy-related restriction.[3]  An undue hardship is an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.[4]

• What is an unlawful employment practice under the PWFA?

Failure to provide a reasonable accommodation where doing so does not impose an undue hardship on the employer is an unlawful employment practice under the PWFA.[5] Additionally, it is illegal for a covered employer to require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process.[6]

Importantly, the PWFA states that it is an unlawful employment practice to require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation is available that would allow the employee to continue working.[7] Denying employment opportunities to a qualified employee based upon the covered employer’s need to provide a reasonable accommodation or taking adverse action against a qualified employee based upon a request for a reasonable accommodation is also unlawful under the PWFA.[8]

• Are there any examples of reasonable accommodations for workers with pregnancy-related restrictions?

The House Committee on Education and Labor Report on the PWFA provides several examples of reasonable accommodations for qualified workers, including closer parking, flexible hours, water, seating, appropriately sized uniforms and safety apparel, excusing the worker from strenuous activities, and additional break time to use the restroom, eat, and rest.[9]

• What kinds of risks do employers face for failing to prevent pregnancy discrimination in the workplace?

Recently, a Cleveland law firm made headlines[10] for a viral text message from a male partner to a female attorney essentially shaming her for giving notice that she was taking another position shortly after returning from maternity leave. The text message in question equates the female attorney taking maternity leave as “collecting salary from the firm while sitting on your [expletive].” This incident serves as a cautionary tale to employers to be vigilant in taking steps to prevent discriminatory conduct against all workers with pregnancy-related restrictions. Failure to do so is costly, both in terms of legal consequences and public opinion.

• Is the EEOC accepting charges under the PWFA?

Workers affected by pregnancy, childbirth, or a related medical condition may already be eligible for an accommodation under Title VII or the ADA. The U.S. Equal Employment Opportunity Commission (EEOC) will continue to accept and process Title VII and/or ADA charges involving a lack of accommodation before the PWFA takes effect on June 27, 2023.[11] The EEOC will begin accepting and evaluating charges under the PWFA, in addition to Title VII and/or the ADA charges, on June 27, 2023.[12]

• What can employers do now to prepare for the PWFA to take effect?

Now is the time for covered employers to examine their policies to determine whether they need to make any changes to comply with the PWFA. Additionally, the EEOC is required to issue regulations to carry out the PWFA, which will be open for public comment before the regulations take effect.[13]

BMD’s Labor and Employment team is here to answer any questions employers may have about compliance with the PWFA and other state and federal laws to ensure that covered employees with pregnancy-related restrictions have equal opportunities in the workplace. If you have any questions about this topic or wish to discuss, please contact Bryan Meek at bmeek@bmdllc.com or Hayley Kick at hekick@bmdllc.com.

[1] See 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.

[2] See U.S. Equal Employment Opportunity Commission, Pregnancy Discrimination and Pregnancy-Related Disability Discrimination, available at https://www.eeoc.gov/pregnancy-discrimination.

[3] See U.S. Equal Employment Opportunity Commission, Fact Sheet: Disability Discrimination, available at https://www.eeoc.gov/laws/guidance/fact-sheet-disability-discrimination.

[4] Id.

[5] See 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.

[6] Id.

[7] Id.

[8] Id.

[9] 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.

[10] Sindhu Sundar, “A Cleveland law firm fired a lawyer over his text to a female attorney accusing her of ‘collecting a salary from the firm while sitting on your ass’ during maternity leave,” Business Insider, available at https://www.businessinsider.com/lawyer-who-shamed-coworker-about-maternity-leave-text-fired-2023-1

[11] See 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.

[12] Id.

[13] Id.