Get Ready to Comply with the Pregnant Workers Fairness Act (PWFA) in 2023

by Lana L. Rupprecht, Esq. - Director, Product Compliance

January 09, 2023

 

On December 29, 2022, the President signed the Consolidated Appropriations Act. One part of this Act included the Pregnant Workers Fairness Act (PWFA), effective June 27, 2023.

What is the PWFA? This is a federal law with a stated purpose to "eliminate discrimination and promote women's health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition."

What does the PWFA require?

Under the PWFA, it is an unlawful employment practice to:

  1. Refuse to make reasonable accommodations to applicants or employees who have physical or mental conditions associated with their pregnancy, childbirth or related medical conditions;
  2. Require applicants or employees affected by pregnancy, childbirth or related medical conditions to accept an accommodation that is not "reasonable" and not the result of the "interactive process";
  3. Deny employment opportunities to employees or applicants because they need a reasonable accommodation due to pregnancy, childbirth or related medical conditions;
  4. Require employees or applicants to take leave due to their pregnancy, childbirth or related medical conditions, if another reasonable accommodation is available;
  5. Take adverse action against applicants or employees because they requested or used a reasonable accommodation due to pregnancy, childbirth or a related medical condition.

Must employers always offer a reasonable accommodation under the PWFA?

No. Like the Americans with Disabilities Act (ADA), a reasonable accommodation is not required if the employer can demonstrate that such an accommodation would impose an "undue hardship." "Undue hardship" under the PWFA is the same high standard provided under the ADA (i.e., an action requiring significant difficulty or expense). However, an employer should first engage in the interactive process with the employee first before determining it cannot accommodate due to undue hardship. This includes considering accommodations other than what the employee is requesting.

Who must comply with the PWFA? Employers with 15 or more employees as defined under Title VII of the Civil Rights Act of 1964 and other state and federal governmental entities.

Will there be further guidance on this? The Equal Employment Opportunity Commission (EEOC) must issue regulations no later than one year from the date of enactment. Such regulations must provide "examples of reasonable accommodations addressing known limitations relating to pregnancy, birth, or related medical conditions."

What if my employees are already subject to pregnancy accommodation laws in the states they work?

The PWFA will not invalidate or limit any other federal, state or political subdivision that provides greater or equal protections for individuals affected by pregnancy, childbirth or related medical conditions.

In fact, most states already have some sort of pregnancy accommodation statute and as a result, the PWFA may not significantly impact certain employers. Check with your attorney as some state laws may have greater protections than the PWFA.

How is this different from the Pregnancy Discrimination Act?

The Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964 and requires that pregnant workers be treated in the same manner as other similarly situated employees. Under the PDA discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination. The PDA does not contain the specific accommodation requirements set forth in the PWFA. More information about the PDA can be found here.

Isn't a reasonable accommodation already required under the ADA?

Yes, but pregnancy alone is not typically considered a disability under the ADA. The PWFA will require that employers make reasonable accommodations to those affected by pregnancy, childbirth or related medical conditions, regardless of whether any condition is considered a disability as defined by the ADA.

Matrix Can Help!

Matrix offers integrated leave management services including ADA and pregnancy accommodation solutions. For more information, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.