By Katherine Brustowicz and David Gabor
Introduction: It has long been the law that Title VII, the Age Discrimination in Employment Act (ADEA), and the Family Medical Leave Act (FMLA) protect pregnant and nursing employees. These laws provide protections to employees against workplace discrimination based on pregnancy status, childbirth, or related medical conditions. The FMLA provides covered employees with unpaid, job-protected leave for certain family and medical reasons including childbirth and related medical conditions. The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) broadened workplace protections for employees to express breast milk while at work.
In late June 2023, covered employers will have additional obligations under the new Pregnant Workers Fairness Act (PWFA). Note that the PWFA in no way impacts existing obligations under any federal, state, or local laws.
Who are covered employers under the PWFA: Private and public sector employers with at least 15 employees; employment agencies; Federal Agencies; Congress; and labor organizations are covered employers under the PWFA.
Who does the PWFA protect: Employees and applicants who have known limitations related to pregnancy, childbirth, or related medical conditions are protected under the PWFA.
What protections are provided under the PWFA: Covered employers are required to provide reasonable accommodations to workers with known limitations related to pregnancy, childbirth, or related medical conditions. These reasonable accommodations must be provided unless the accommodation would cause an “undue hardship.” An undue hardship is defined as a significant expense or difficulty for the employer.
Under the PWFA, covered employers are prohibited from denying qualified job applicants or employees employment opportunities based on their need for a reasonable accommodation. Employers cannot require that an employee take leave if a reasonable accommodation can be provided that would allow the employee to continue to work. Employers cannot retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or for participating in a proceeding brought under the PWFA.
What constitutes a reasonable accommodation under the PWFA: Reasonable accommodations may include the following: providing the worker with additional break time to use the bathroom, eat, and rest; granting the worker the ability to sit or drink water; allowing the employee leave or time off to recover from childbirth; excusing the worker from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy; providing closer parking spaces; and offering flexible hours.
Utilizing the interactive process: When an employee requests an accommodation or it becomes apparent that an accommodation may be warranted, employers should engage in the interactive process. This is a mechanism to enable the employer and the employee to go back and forth in order to determine whether it is possible to identify a reasonable accommodation so that the employee can perform the essential functions of the job.
When does the PWFA go into effect: The PWFA goes into effect on June 27, 2023.
What employers should do now: Now, before the new law goes into effect, is an excellent time to ensure HR, managers, and supervisors know how to address matters covered by the PWFA. This is also an opportunity for managers and supervisors to understand the rights that employees have and when it is necessary management to meet with HR so that no mistakes are made.
In addition, employers should review and modify workplace policies on reasonable accommodations to ensure the inclusion of employees with known limitations related to pregnancy, childbirth, or related medical conditions.
Attorneys Katherine Brustowicz and David Gabor of The Wagner Law Group’s Employment Law and Human Resources Team are available to help you navigate the PWFA. Please do not hesitate to reach out for support.