Listen to this post

Effective June 27, a new federal law strengthens the rights of pregnant workers (and those who are postpartum or have a related medical condition) to reasonable accommodations at work. As discussed here, the Pregnant Worker Fairness Act fills the gap between Title VII (the federal law that outlaws sex discrimination) and the ADA (the federal statute that protects disabled applicants and employees), ensuring that pregnant workers are able to continue in their jobs with reasonable accommodations for physical or mental conditions related to pregnancy and childbirth, so long as the accommodations do not “impose undue hardship on the operation of the business.”

The PWFA does not displace federal, state or local laws that are more protective of workers affected by pregnancy, childbirth or related medical conditions. For instance, since the 1980s, California employees who are pregnant, give birth, or have pregnancy-related medical conditions are guaranteed time off from work while disabled, without having to show that the time off would not impose an “undue hardship”  on the employer’s business.

Who Is Covered

The PWFA law applies to employers with 15 or more employees. It protects both pregnant employees and those with “related medical conditions,” including fertility treatment, postpartum depression and abortion or pregnancy loss.

Why Is This Significant

Before the PWFA, accommodations were required only if they were provided to employees taking other types of leave (i.e., to eliminate discrimination). The PWFA eliminates that hurdle for workers and now, employees with limitations related to “pregnancy, childbirth, or related medical conditions” simply need to request an accommodation in order to trigger the interactive process.

The PWFA also significantly expands the number of employees who can take time off from work due to pregnancy. The Family and Medical Leave Act already offers certain employees unpaid time off from work due to pregnancy disability or to recover from childbirth, but the FMLA only applies to employees who have worked for the employer for at least 12 months and 1,250 hours. The PWFA grants employees unpaid time off regardless of how long they’ve worked for their employer.

Separately, since 2016, there’s been a steady rise in the number of federal pregnancy discrimination lawsuits. Now that the law concerning accommodation is more straightforward, and the obligation for employers to engage in the interactive process is plainly established, we expect this trend to continue. We also foresee conflict where covered workers request an accommodation to work remotely because of pregnancy. Companies who seek  to deny such requests will have to explain why remote work constitutes an “undue burden,” a more difficult argument to make post-pandemic.

No Guidance from the EEOC Yet

The EEOC has not yet issued guidance on the new law, and thus questions about what constitutes a “known limitation” that would justify an accommodation request, or what constitutes a “reasonable accommodation,” remains unclear.

However, the House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations. These include: the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

Employer To-Dos

  • Review and update policies and handbooks where reasonable accommodations are discussed.
  • Train HR, managers and supervisors on the new requirements (in particular, focusing on worksites outside of the 20+ states like California that already have such requirements on the books, where this will feel like a new obligation). Employers should understand that the onus is now on them to figure out how to accommodate a pregnant worker.
  • Take this as an opportunity for refresher training on reasonable accommodations and how to properly engage in an interactive process, and focus on the importance of documentation.
  • Stay tuned for guidance from the EEOC and we’ll post updates here!