United States: New Federal Law Expands Protections For Pregnant Applicants And Employees

Beginning June 27, 2023, a new federal law—the Pregnant Workers Fairness Act (the "PWFA")—expands protections for pregnant job applicants and employees. In particular, the PWFA requires, among other things, that covered employers provide a reasonable accommodation for known limitations related to pregnancy, childbirth, and associated medical conditions of qualified employees and job applicants unless the accommodation would cause an undue hardship.

As described below, the PWFA imposes new requirements on many employers. Covered employers should consider updating their accommodation policies and providing additional training of human resources staff and other personnel. This Legal Update summarizes the PWFA's requirements, describes the PWFA's relationship to other federal and state laws concerning similar subjects, and suggests potential next steps for employers.

Coverage

The PWFA applies to private employers with 15 or more employees.¹ Most of the PWFA's protections, however, extend to only "qualified" employees. Under the PWFA, a "qualified employee" is "an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position."² The PWFA specifies, however, that an employee or applicant shall still be considered qualified if (1) any inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated.³

Accommodation Requirement

The PWFA's principal requirement is that a covered employer provide a reasonable accommodation for "known limitations" related to pregnancy, childbirth, and associated medical conditions of a qualified employee, unless the accommodation would impose an undue hardship on the employer.⁴

Known Limitation: Under the PWFA, a "known limitation" means a "physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee's representative has communicated to the employer."⁵ As discussed below, a known limitation under the PWFA need not qualify as a "disability" under the Americans with Disabilities Act ("ADA").⁶

Reasonable Accommodation: Under the PWFA, the term "reasonable accommodation" has the same meaning as under the ADA and should be construed in the same manner, including with respect to the requirement that the employer engage in an interactive process with the employee or job applicant concerning the potential accommodation.⁷ In recent guidance, the Equal Employment Opportunity Commission ("EEOC") has identified the following possible accommodations that an employer might offer pursuant to the PWFA:

• closer parking;
• flexible hours;
• appropriately sized uniforms and safety apparel;
• additional break time to use the bathroom, eat, and rest;
• permission to sit and drink water;
• leave or time off to recover from childbirth; and
• being excused from strenuous activities and activities that involve exposure to compounds not safe for pregnancy⁸

Undue Hardship: As with "reasonable accommodation," the term "undue hardship" has the same meaning under the PWFA as under the ADA.⁹ Accordingly, the term means an action "requiring significant difficulty or expense" to the employer, when considered in light of the following factors, among others: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility and the effect of such accommodation upon the operation of the facility; (3) the overall financial resources of the covered entity and the number, type, and location of its facilities; and (4) the type of operation of the covered entity.¹⁰

Other Key Provisions

In addition to the accommodation provision above, the PWFA also contains the following other key provisions:

• Interactive Process: A covered employer may not require a qualified employee to "accept an accommodation other than any reasonable accommodation arrived at through the interactive process."¹¹
• Non-Leave Accommodation: A covered employer may not "require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided."¹²
• Non-Discrimination: A covered employer may not "deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations,"¹³ nor may a covered employer "take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation."¹⁴
• Non-Retaliation: The PWFA also provides that "[n]o person shall discriminate against any employee because such employee has opposed any act or practice made unlawful" under the statute or "because such employee made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under the PWFA. In addition, the PWFA states that it is "unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of such individual having exercised or enjoyed, or on account of such individual having aided or encouraged any other individual in the exercise or enjoyment of, any right granted" under the PWFA.¹⁵

The PWFA instructs the EEOC to issue regulations elaborating on these and other provisions by the end of 2023.¹⁶

Other Laws

Although existing federal and state laws address pregnancy discrimination and disability-related accommodations, the PWFA will impose new requirements on many employers, as follows:

• Pregnancy Discrimination Act of 1978. The Pregnancy Discrimination Act of 1978 ("PDA") provides, among other things, that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work."¹⁷ By its terms, the PDA thus concerns how affected employees are treated relative to otherwise similarly situated employees not affected by pregnancy, childbirth, or related medical conditions.¹⁸ The PWFA, in contrast, does not require this comparison and thus expands the protections available to covered employees. Under the PWFA, a pregnant employee may be entitled to a reasonable accommodation regardless of the accommodations available to non-pregnant employees.
• Americans with Disabilities Act. The ADA requires, among other things, that covered employers provide reasonable accommodations to qualified employees with disabilities, unless doing so would impose an undue hardship on the employer.¹⁹ Under the ADA, pregnancy itself does not qualify as a disability, and a pregnancy-related condition ordinarily only qualifies if the condition amounts to a physical or mental impairment that substantially limits one or more major life activities.²⁰ The PWFA, by contrast, is not so limited. As noted, the PWFA expressly states that the "physical or mental condition" at issue need not qualify as a disability under the ADA.²¹
• State Laws. A majority of states have statutes concerning accommodations for pregnant employees.²² Employers in states without such statutes—such as Florida and Wyoming—may need the most significant revisions to their accommodation policies. But even for employers in states with existing laws on the subject—such as Illinois²³ and New York²⁴—the PWFA will likely impose new requirements and, accordingly, warrant revisions to existing policies.

This list above is, of course, not exhaustive. The Family and Medical Leave Act ("FMLA") and Providing Urgent Maternal Protections for Nursing Mothers Act ("PUMP Act"), for example, should also be considered when evaluating accommodations related to pregnancy, childbirth, and associated medical conditions.

Enforcement, Penalties, and Defenses

For private employers, the PWFA adopts the "powers, remedies, and procedures" of Title VII.²⁵ Accordingly, a complainant may be entitled to compensatory and punitive damages but must exhaust administrative remedies with the EEOC before filing suit.²⁶ On the PWFA's effective date of June 27, 2023, the EEOC will start accepting charges under the statute.²⁷ Per the EEOC's initial guidance, the PWFA will only cover actions occurring on or after June 27, 2023.²⁸

The PWFA also provides employers with a "good faith" defense to damages. In particular, "if an unlawful employment practice involves the provision of a reasonable accommodation . . ., damages may not be awarded . . . if the covered entity demonstrates good faith efforts, in consultation with the employee . . ., to identify and make a reasonable accommodation that would provide such employee with an equally effective opportunity and would not cause an undue hardship on the operation of the covered entity."²⁹ The EEOC may elaborate on the contours of this defense in its forthcoming regulations.

Takeaways

In light of the PWFA, employers should analyze their existing accommodation policies and assess whether the policies require updating. Further, employers should consider training human resources staff and other personnel involved in accommodation requests to ensure that they understand the PWFA and its requirements. Employers should also give fresh consideration to what accommodations may be available to employees with limitations related to pregnancy, childbirth, and associated medical conditions—either as a general matter or for particular positions. As noted above, the EEOC has already released a list of specific potential accommodations and will be providing additional guidance in the months to come. Finally, employers should consider consulting with their employment counsel on accommodation-related questions, particularly in light of the interplay between various state and federal statutes on these questions, to which the PWFA is the latest addition.

Footnotes

1 42 U.S.C. § 2000gg(2).

2 Id. § 2000gg(6).

3 Id.

4 Id. § 2000gg-1(1).

5 Id. § 2000gg(4) (emphasis added).

6 Id.

7 Id. § 2000gg(7).

8 EEOC, What You Should Know About the Pregnant Workers Fairness Act, available at https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.

9 42 U.S.C. § 2000gg(7).

10 Id. § 12111(10).

11 Id. § 2000gg-1(2).

12 Id. § 2000gg-1(4).

13 Id. § 2000gg-1(3).

14 Id. § 2000gg-1(5).

15 Id. § 2000gg-2(f).

16 Id. § 2000gg-3(a).

17 42 U.S.C. § 2000e(k).

18 See, e.g., Equal Empl. Opportunity Commn. v. Wal-Mart Stores E., L.P., 46 F.4th 587, 593 (7th Cir. 2022) (describing framework).

19 42 U.S.C. § 12112(b)(5)(A).

20 Enforcement Guidance: Pregnancy Discrimination and Related Issues, 2015 WL 4162723, at *19-20.

21 42 U.S.C. § 2000gg(4).

22 See, e.g., United States Department of Labor, Employment Protections for Workers Who Are Pregnant or Nursing, available at https://www.dol.gov/agencies/wb/pregnant-nursing-employment-protections.

23 See, e.g., 775 ILCS 5/2-102(j).

24 See, e.g., N.Y. Exec. Law § 296(3)(a).

25 42 U.S.C. § 2000gg-2(a).

26 Id.; id. § 1981a.

27 EEOC, What You Should Know About the Pregnant Workers Fairness Act, available at https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.

28 Id.

29 42 U.S.C. § 2000gg-2(g).

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