July 3 Tip of the Week

“Reminder:  Pregnant Workers Fairness Act in Effect”

Labor and employment laws change on a regular basis, with new laws being passed with effective dates in the future.  The news and analysis surrounding these new laws generally occurs when the law is passed and, when the law actually takes effect, there is little fanfare.  One such federal law that was passed on December 22, 2022, but did not take effect until June 23, 2023, is the Pregnant Workers Fairness Act.  This federal law was designed to provide certain protections for pregnant employees who require accommodations at work due to their pregnancy.  The law seeks to apply an ADA standard to any request for reasonable accommodations from pregnant employees. 

As we noted in our weekly tip when the act was passed, 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.

The key difference employers will find as this law takes effect is that they can no longer rely on the defenses they used when denying pregnant women accommodations that they would not have provided to employees with other, non-pregnancy related, temporary medical conditions that impacted their ability to work.  Blanket policies that do not allow for temporary job modifications due to temporary disabilities will not withstand scrutiny under this new law.  Instead, employers must use the standards applicable to requests for reasonable accommodations under the ADA.  This means that the employer should engage in the interactive process with pregnant employees to find ways to reasonably accommodate any limitations the employee may have due to their pregnancy. 

Employers would be well served to review their policies to ensure that they are in compliance with the law.  myHRcounsel can assist with this review, either on a standalone basis or as part of our annual handbook service.