The Pregnant Workers Fairness Act (PWFA), which was signed into law in late 2022 and went into effect June 27, 2023, requires employers to provide “reasonable accommodations” for an employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations would cause the employer an “undue hardship.”
Whom Does the PWFA Apply To?
The PWFA applies to and protects qualified employees and applicants of private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations. A “qualified employee” is defined as any individual who can perform the essential functions of the position with or without a reasonable accommodation.
What Is a Known Limitation?
A “known limitation” means a physical or mental condition related to an employee’s pregnancy, childbirth, or related medical condition that the employee or employee’s representative has communicated to the employer. It’s important to note that the limitation or condition does not have to meet the definition of a disability as explicated by the Americans with Disabilities Act (ADA). It’s sufficient for the employee’s physical or mental condition related to pregnancy, childbirth, or a medical condition to require that the employer provide an accommodation.
What Are Examples of Reasonable Accommodations?
Employers should already be familiar with the concept of providing employees with reasonable accommodations under the ADA. Reasonable accommodations are generally defined as changes to the typical work environment to aid an employee’s known limitations. Examples of possible reasonable accommodations under the PWFA include the following:
- The ability to sit if needed
- Taking water breaks
- Access to closer parking
- Flexible work hours
- Appropriately sized uniforms and safety apparel
- Additional break time to use the bathroom, eat, and rest
- Leave or time off to recover from childbirth
- Avoiding strenuous activity or exposure to unsafe compounds
Do Employers Have to Provide a Requested Accommodation?
Similar to the ADA, employers aren’t required to provide all requested accommodations—only those that are “reasonable” and won’t cause an “undue hardship” on the employer’s operations. An undue hardship is defined by the Equal Employment Opportunity Commission (EEOC) as an action that would “cause significant difficulty or expense” when considered in light of factors such as the nature and cost of the accommodation needed, the employer’s financial resources, the employer’s type of operation, and the potential impact of the accommodation on the employer’s operation.
What Is Prohibited Under the PWFA?
In addition to providing reasonable accommodations, employers should refrain from the following:
- Requiring an employee to accept any accommodation without a discussion between the employer and employee
- Denying a job or another employment opportunity to a qualified employee or applicant based on a need for a reasonable accommodation
- Requiring an employee to take leave if another reasonable accommodation can be provided that would instead allow the employee to continue working
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding
- Interfering with any individual’s rights under the PWFA
Best Practices Under the PWFA
Employers should make it their practice to engage in good-faith conversations with an employee seeking a reasonable accommodation under the PWFA. This conversation, known as the “interactive process,” involves communication between employer and employee to determine the best and most reasonable accommodation. The employer should initially acknowledge the request and then gather as much information as possible from the employee. During this interview process, the employer may request information from the employee’s healthcare provider to determine the employee’s exact needs. The employer can then explore options for a reasonable accommodation.
As with all requests for any such accommodations, employers should foster an environment where employees are comfortable discussing their needs and limitations with management. Doing so will foster trust and positive communication between employer and employee, thus ensuring employers can make informed decisions regarding accommodating a vital portion of their workforce.
Michael R. Luchsinger is a shareholder at Segal McCambridge. He may be reached at MLuchsinger@SMSM.com.