February 20 Tip of the Week

“Pregnancy as a Disability”

Congress recently enacted the Pregnant Workers Fairness Act which takes effect on June 27, 2023.  The law applies to employers with 15 or more employees.  Under this new law, employers are obligated to treat pregnant employees in the same manner as they would treat an employee with a disability, when the pregnant employee’s condition impacts their ability to perform their job duties.  The EEOC has summarized the protections of this law as follows:

            The Pregnant Workers Fairness Act (PWFA) is a new law that requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”

What You Should Know About the Pregnant Workers Fairness Act, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act#q4.  According to the EEOC, this law applies only to accommodations that must be made for pregnant employees, it does not address an employer’s obligation not to discriminate against or terminate pregnant employees.  Those issues are addressed under existing laws, such as Title VII of the Civil Rights Act and the Pregnancy Discrimination Act. 

The Pregnant Workers Fairness Act essentially acts as an extension of the Americans with Disabilities Act by treating pregnancy as a potential disability.  Although the Pregnancy Discrimination Act guidance issued by the EEOC previously addressed issues of pregnancy discrimination, including the need for job modifications or reasonable accommodations due to pregnancy limitations, the PWFA expands on these protections and provides examples of the types of accommodations that may be needed to address limitations caused by pregnancy.  The PWFA identifies the following types of accommodations as reasonable under the law: 

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.

See, Question 5, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act#q4.  In listing these accommodations, the law also references the ADA’s undue hardship considerations when determining whether an accommodation is required by the law.  An undue hardship is generally one that involves a significant expense to the employer or one that is difficult to implement. 

What does this law mean for employers?  In many ways, the Pregnant Workers Fairness Act does not impose any significantly new obligations on employers.  Employers have always been obligated to treat pregnant employs the same as they would treat any other employee.  For pregnant employees who develop physical limitations due to their condition, employers were required to accommodate those employees in a similar fashion as to how they would accommodate any other employee with a medical condition that impacted their ability to do the job.  Employers have relied on this “similarly situated” language to justify the denial of light duty to pregnant employees because they have not offered light duty to other employees, including those who have been injured on the job.  This approach will likely result in challenges under the Pregnant Workers’ Fairness Act and employers will now have to treat pregnant employees who have physical limitations as a result of their pregnancy in the same manner as they would treat an employee with a disability.  This means that the employer would need to engage in the interactive process with the pregnant employee to arrive at a reasonable accommodation that would enable the pregnant employee to perform the essential functions of their job.  Reliance on the consistency of treatment of other employees with medical conditions will not be sufficient to justify the denial of an accommodation, such as light duty, under this new law. 

myHRcounsel can assist you in navigating these difficult employee situations and in understanding your expanding obligations under the law.  We do this by working with you to develop comprehensive, legally compliant employee handbooks that contain policies that are consistent with an employer’s legal obligations to their employees.  We also can assist you in addressing issues that arise with employees – whether they are requests for accommodation or claims of employment discrimination.  myHRcounsel is here to provide you with timely, practical legal advice.