The Pregnant Workers Fairness Act (PWFA) expands on the protections prohibiting discrimination based on pregnancy. At its core, PWFA requires employers to provide “reasonable accommodations” to known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would result in “undue hardship” to the employer.
Many states and cities have laws that provide accommodations for pregnant workers. The PWFA, which went into effect on January 27, 2023, protects employees and applicants in such a way as to provide further expansion of the understanding concerning required accommodations. In this regard, the U.S. House of Representatives’ report on the PWFA provides a number of examples of possible reasonable accommodation. Some of the examples include:
- Providing flexible work hours;
- Receiving appropriately-sized uniforms and safety apparel;
- Being excused from strenuous activities, receiving closer parking accommodations; and,
- Providing additional break time to use the bathroom, eat and rest.
These accommodations are to be provided unless the accommodations would cause an “undue hardship” on the employer’s operation. “Undue hardship” in this context is defined as causing significant difficulty or expense for the employer. This is a much-heightened standard and will result in greater accommodations by many employers in the context of known limitations related to pregnancy, childbirth, or related medical conditions.
In a publication by the U.S. Equal Employment Opportunity Commission (EEOC) entitled “Tips for Asking for a Reasonable Accommodation,” four steps for raising accommodation requests are set forth. They are:
- Talk to your employer;
- Explain that because of a physical or mental condition related to your pregnancy, childbirth, or related medical condition, you need a change;
- Share with your employer what barriers you are facing. Give ideas, if you have them, for what could help you do your job; and,
- If your employer says “no,” provide information. Tell your employer about the EEOC’s webpage.
EEOC recently issued a Notice of Proposed Rulemaking (NPRM) to implement the PWFA. The NPRM, which is quite instructive, was published in the Federal Register on August 11, 2023.
As noted, the PWFA requires an employer to provide reasonable accommodations, absent undue hardship. Of course, this requirement is premised on there being a qualified employee or applicant with a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The proposed rule addresses each element of this requirement. Perhaps more instructive is that the proposed rule provides specific examples of possible reasonable accommodations under the PWFA, including:
- Frequent breaks;
- Schedule changes, part-time work, and paid and unpaid leave;
- Light duty;
- Making existing facilities accessible or modifying the work environment;
- Job restructuring;
- Temporarily suspending one or more essential function;
- Acquiring or modifying equipment, uniforms or devices; and
- Adjusting or modifying examinations or policies.
In addition, the term “undue hardship” is expressly noted in the proposed rule as a term coming from the Americans with Disabilities Act (ADA). In fact, the PWFA uses the definition of undue hardship similar to that in the ADA. Generally, undue hardship in this context means significant difficulty or expense for the operation of the employer. In that regard, the proposed rule outlines a number of factors to be considered when determining if undue hardship exists.
In many respects, the passage of the PWFA at the federal level mirrors societal changes providing ever greater accommodation and regard for pregnant workers so that employment may continue in a context that provides reasonable accommodation.
Management education on the breadth of the accommodations contemplated and the appropriate interactive process to explore reasonable accommodations would be most helpful in this context. Often, there is some confusion in terms of operational management’s understanding of reasonable accommodation generally and perhaps particularly in the context of pregnant workers. The PWFA further provides the framework for reasonable accommodation and the responsibilities of management to be ever thoughtful and accommodating in this context.