On June 27, 2023, the Pregnant Workers Fairness Act (“PWFA”) went into effect. This new law requires covered employers to provide “reasonable accommodations” for the known limitations of a worker relating to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer “undue hardship.”
What does this mean and how will the new law be enforced?
The Equal Employment Opportunity Commission (“EEOC”) is required to issue regulations to carry out the PWFA. No date for issuance is presently known. Regardless, the EEOC has already begun accepting charges of discrimination (“Charges”) as of June 27, 2023.
- After June 27, 2023, the EEOC will analyze Charges concerning pregnancy-related accommodations under the PWFA if the violation occurred after that date. As applicable, the EEOC also will continue to analyze Charges under Title VII of the Civil Rights Act of 1964 (“Title VII”) or the Americans with Disabilities Act (“ADA”), existing laws that enable workers to obtain reasonable accommodations when affected by pregnancy-related conditions.
- The PWFA does not replace federal, state or local laws that may be more protective of workers.
- This new law applies only to accommodations and does not change existing laws making it illegal to fire or otherwise discriminate on the basis of pregnancy, childbirth, or related medical conditions.
- A “covered employer” includes private and public sector employers with at least 15 employees.
- Employers must consider whether a pregnancy, childbirth, or related medical condition makes it harder for an employee to perform their job.
- A “reasonable accommodation” is a change to the work environment or the way things are usually done at work. Examples of accommodations include without limitation:
- Closer parking;
- Flexible hours;
- Additional break times to use the bathroom, eat, and rest;
- Leave or time off to recover from childbirth; and
- Being excused from strenuous activities or activities that involve exposure to compounds not safe for pregnancy.
- There are also certain actions that a covered employer cannot take such as:
- Requiring an employee to accept an accommodation without discussing it with the employee first;
- Denying a job or employment opportunity because a qualified employee/applicant needs a reasonable accommodation;
- Requiring an employee to take leave if an alternative reasonable accommodation can be provided;
- Retaliating against an individual for reporting or opposing unlawful discrimination or for participating in a PWFA investigation or related proceeding; and
- Interfering with any rights under the PFWA.
It is important to remember that other federal laws providing protections for pregnant workers still apply. This includes Title VII, the ADA, the Family and Medical Leave Act, and the PUMP Act. Additionally, the proposed Title IX regulations would provide enhanced protections for pregnant students and employees concerning pregnancy-related conditions. If enacted as proposed, the new Title IX regulations would define pregnancy-related conditions to include childbirth, false pregnancy, termination of a pregnancy (abortion, miscarriage, or other pregnancy loss), and recovery from the same. The proposed Title IX regulations also would recognize lactation as a condition related to pregnancy. Additionally, institutions would be required to provide information to pregnant students regarding their rights, and the Title IX Coordinator would be required to ensure that reasonable modifications are provided. The new regulations make clear that educational institutions must provide reasonable modifications to polices, practices, and procedures when needed for pregnancy-related conditions unless it can be shown that the change “fundamentally alters” the education program.
The PWFA (and proposed Title IX regulations) requires educational institutions to implement new pregnancy-related protections and procedures that benefit employees and students. A summer priority for schools should be ensuring that institutional policies and protocols are updated to comply with the PWFA and planning ahead for the related changes to Title IX.
