The Pregnant Workers Fairness Act Takes Effect: What Employers Should Know

The Pregnant Workers Fairness Act, a federal law that came into effect on June 27, 2023, provides employees and applicants with pregnancy-related conditions with many of the same rights afforded to workers with disabilities under the Americans with Disabilities Act (ADA). The law applies to private employers with 15 or more employees, as well as state and local governments, Congress, federal agencies, employment agencies and labor organizations, and requires them to provide reasonable accommodations for “qualified employees” facing “known limitations” due to pregnancy, childbirth or related medical conditions.

Here’s what employers need to know:

• The Pregnant Workers Fairness Act:
  • Does not replace federal, state or local laws that are more protective of workers affected by pregnancy, childbirth or related medical conditions.
  • Applies only to accommodations. Existing laws address discrimination against workers based on pregnancy, childbirth or related medical conditions.
• “Qualified employees” are employees or applicants who, with or without reasonable accommodation, can perform the essential functions of the job. The law also considers an employee or applicant “qualified” if:
  • Any inability to perform an essential function is temporary;
  • The essential function could be performed in the near future; and
  • The inability to perform the essential function can be reasonably accommodated.
• A “known limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions that the employee has communicated to the employer. (The condition does not need to meet the definition of “disability” under the ADA.)
• The scope of the law is broad. It covers pregnant employees, as well as those with “related medical conditions,” which could include women undergoing fertility treatment, those with postpartum conditions and those who have had an abortion or pregnancy loss.
• Some examples of reasonable accommodations under this new law include:
  • The ability to sit or drink water.
  • Receiving closer parking.
  • Having flexible hours.
  • Receiving appropriately sized uniforms and safety apparel.
  • Receiving additional break time to use the bathroom, eat and rest.
  • Taking leave or time off to recover from childbirth.
  • Being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
• Like in the ADA context, employers are required to engage in an interactive process with the employee to find a reasonable accommodation.
• Under the Pregnant Workers Fairness Act, employers cannot:
  • Fail to make a reasonable accommodation to a qualified employee for a known limitation unless the employer demonstrates that the accommodation would impose an undue hardship on business operations, such as significant difficulty or expense for the employer.
  • Require a qualified employee to accept an accommodation without discussing it with the worker.
  • Deny a job or other employment opportunity to a qualified employee based on the person’s need for a reasonable accommodation.
  • Require a qualified employee to take paid or unpaid leave if the company can provide another reasonable accommodation that would let them keep working.
  • Retaliate against someone for reporting or opposing unlawful activity under the Pregnant Workers Fairness Act (or participating in an investigation or other proceeding relating to the law).
• Like Title VII, the new law covers employees (including former employees) and applicants – but not independent contractors.

In the coming months, the EEOC is expected to issue a proposed version of regulations implementing the Pregnant Workers Fairness Act for public input and commentary. In the meantime, you can access the text of the new law here and Questions & Answers published on the EEOC’s website here.