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The Pregnant Workers Fairness Act

Jun 27, 2023

Author: Mark Bloom

Beginning June 27, 2023, employers with 15 or more employees are required to provide reasonable accommodation to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship. 

The Pregnant Workers Fairness Act (“PWFA”) applies only to accommodations.  Existing laws that the EEOC enforces, such as Title VII and the ADA, make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions.

The definition of “reasonable accommodation” is the same definition applied under the ADA. Reasonable accommodations are any modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed, that enables a qualified individual to perform the essential functions of the job.  Just like the ADA, employers must engage in the interactive process with employees to discuss potential reasonable accommodations.  It is important to remember that there may be more than one reasonable accommodation to choose from, and employers are not required to utilize the accommodation requested by the employee if there is another accommodation which enables the employee to perform essential functions of the job.  Additionally, an employer is never required to remove essential functions of a job as a reasonable accommodation. 

Several examples of possible reasonable accommodations including 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. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is a significant difficulty or expense for the employer. 

Employers who are covered by the PWFA cannot: 

  • Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
  • Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
  • Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
  • Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
  • Interfere with any individual’s rights under the PWFA.

Employers should take the following steps to ensure compliance with the PWFA:

  • Add a PWFA policy to the employee handbook which includes the process for requesting accommodation and the title of the position employees should make the request to;
  • Educate supervisors on the PWFA and who to contact if an employee requests an accommodation under the PWFA (Remember, if an employee makes a request for an accommodation and fails to follow the process outlined in the employee handbook, the employer has knowledge of the request and cannot turn a blind eye.); and
  • When a request is made, engage in the interactive process to determine if there is a reasonable accommodation that can be made. 

If you have any questions, contact Mark Bloom at (260)425-1648 or any of the other employment law attorneys at Beckman Lawson, LLP.