Signed into law last December, the Pregnant Workers Fairness Act (PWFA), which was modeled after the Americans with Disabilities Act (ADA), requires certain covered employers to provide “reasonable accommodations” to workers with known limitations related to pregnancy, childbirth, or related medical conditions, unless a requested accommodation would cause an undue hardship for the employer. The law goes into effect on June 27, 2023.

While existing laws, including Title VII of the Civil Rights Act of 1964 (Title VII) and, in some cases, the ADA, prohibit employers from terminating or discriminating against employees on the basis of pregnancy, childbirth, or a related medical condition, the PWFA primarily applies to accommodations. The PWFA was enacted in part because pregnancy itself is not considered a disability under the ADA, and the law regarding accommodations for pregnancy-related complications has not been applied consistently. The PWFA broadens the protections available to pregnant workers and ensures they will have access to pregnancy-related accommodations.

The law applies to “covered employers,” which include private and public sector employers with at least 15 employees, as well as Congress, Federal agencies, employment agencies, and some labor organizations.

What the PWFA Permits:

The PWFA allows pregnant employees and job applicants access to reasonable accommodations, meaning changes to the workplace or working environment that allow a pregnant worker to perform the essential functions of their job. A Congressional committee that assisted in developing the new law provided some examples of possible reasonable accommodations contemplated under the PWFA. These include:

• Access to seating;
• Access to water;
• Parking closer to the workplace;
• Flexible hours;
• Appropriately sized uniforms and safety apparel;
• Additional break time to use a restroom, eat, and rest;
• Excusing the worker from strenuous activities; and
• Excusing the worker from activities that involve exposure to compounds not safe for pregnancy.

Overall, these potential accommodations are aimed at reducing some of the health risks related to pregnancy. Congressional surveys indicate the most sought pregnancy-related accommodation is the ability to take more frequent breaks.

The PWFA requires covered employers to engage in an interactive process with a qualified employee or applicant to determine whether a reasonable accommodation is available. Employers are required to provide reasonable accommodations unless doing so would cause undue hardship. While circumstances may differ for every employer, undue hardship generally means significant difficulty or expense for the employer.

What the PWFA Prohibits:

In many ways, the prohibitions on employer conduct found in the PWFA are similar to those found in the ADA and the cases interpreting it.

Under the new law, covered employers cannot require a qualified employee or applicant to accept an accommodation without first engaging in an interactive process. Likewise, covered employers cannot deny a qualified employee or applicant a job because the person needs (or has requested) a reasonable accommodation related to a pregnancy, nor may they require an employee to take leave if another reasonable accommodation may be provided. Finally, covered employers may not retaliate against an individual for reporting or opposing unlawful discrimination under the law, or for participating in a PWFA-related proceeding or investigation. Employers may not interfere with individuals’ rights under the PWFA.

The law provides a private right of action, which allows employees to sue an employer for failing to comply with the law. Remedies include injunctive relief, compensatory and punitive damages, and attorney’s fees.

Interaction with Existing Law:

Many states—including Massachusetts, Connecticut, Rhode Island, New Hampshire and New York—have already enacted laws and regulations for workers affected by pregnancy or childbirth. In some cases, those laws provide greater or additional protections than those afforded under the PWFA.

To some extent, the new law’s provisions overlap with those of the ADA and, in some cases, Title VII and state law. Workers affected by pregnancy, childbirth, and related medical conditions may be eligible for accommodations and enjoy protections under those existing laws. The new law is meant to work in conjunction with existing law and will not replace it.

Next Steps:

The Equal Employment Opportunity Commission (EEOC) is expected to release a detailed set of regulations which will provide more examples of reasonable accommodations under the PWFA. On June 27, 2023, the EEOC will begin hearing charges for alleged violations of the new law.

The PWFA should serve as a reminder for employers to ensure their practices and policies are up to date and fully compliant before the law goes into effect. This is a developing area, and protection at the state and local levels may differ from or exceed federal law. Employers with questions about their obligations should contact the experienced professionals in Hinckley Allen’s labor and employment practice group.