Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. The law requires covered employers, which include counties, to provide “reasonable accommodations” to a qualified employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause an undue hardship for the employer. While existing laws make it illegal to take an adverse action or discriminate against a person based on pregnancy, childbirth, or related medical conditions, the PWFA only applies to accommodations. Further, the PWFA does not replace federal, state, or local laws that are more protective of a qualified employee affected by pregnancy, childbirth, or related medical conditions. 42 U.S.C.A. § 2000gg – 1. 

The term “qualified employee” includes an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the job, except that an employee or applicant will also be considered qualified if the following conditions are met: 1) any inability to perform an essential function is temporary; 2) the essential function could be performed in the near future; and 3) the inability to perform the essential function can be reasonably accommodated. 42 U.S.C.A. § 2000gg. 

The terms “reasonable accommodation” and “undue hardship” have the same meaning as defined under section 101 of the Americans with Disabilities Act (42 U.S.C.A. § 12111).

The FWPA also prohibits covered employers from: 

• Requiring a qualified employee to accept an accommodation without an interactive discussion; 

• Denying a qualified employee an employment opportunity based on the person’s need for a reasonable accommodation; 

• Requiring a qualified employee to take leave, whether paid or unpaid, if another accommodation could be made that would allow the employee to keep working; or 

• Taking an adverse action against a qualified employee for requesting or using a reasonable accommodation. 

The House Committee on Education and Labor Report of the PWFA provides several examples of reasonable accommodations including: providing the ability to sit; receiving closer parking; having flexible hours; receiving appropriately sized uniforms and safety apparel; providing extra breaks to use the restroom, eat, and rest; providing leave time to recover from childbirth; and excusing employees from strenuous activities and conditions that are not safe for pregnancy. 

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing and issuing rules for the implementation of the PWFA. The rules will be available before December 29, 2023, and must include examples of reasonable accommodations to address known limitations related to pregnancy, childbirth, and related medical conditions. More information and resources about the PWFA are available at EEOC/What You Should Know About the PWFA.