At the end of last month, the Pregnant Workers Fairness Act went into effect, which requires employers to provide “reasonable accommodations” to a worker’s known limitation related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer “undue hardship.”
While the law passed last December, it did not go into effect until June 27. The PWFA closes a loophole and builds upon the existing federal law that protects pregnant women at work. Previously, workers could only get an accommodation if they could prove another employee was given an accommodation.
Now employees do not need a pregnancy-related disability to qualify for protections, they just need to be pregnant and request an accommodation. The law protects all who work for private or public sector employers with 15 or more employees. The Equal Employment Opportunity Commission is the agency that will enforce this new law.
The PWFA does not replace federal, state or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.
Examples of Accommodations
Reasonable accommodations are changes to the work environment or the way things are usually done at work that allows the employee still to successfully perform their job.
Some of the possible accommodations employers may need to provide include:
- The ability to sit or drink water
- Additional break time to use the bathroom or rest
- Closer parking
- Appropriately sized uniforms and safety apparel
- Flexible hours
- Transfer to light-duty work
- Leave or time off to recover from childbirth
The PWFA is important for workers who do not have time off through the Family and Medical Leave Act. FMLA offers unpaid time off following giving birth, but workers are required to be at a job for a year before they qualify. Under PWFA, a worker qualifies for unpaid time off whether or not they have worked somewhere for a year.
Another possible accommodation could result in no longer performing essential job functions, which is allowed under the PWFA because the accommodation is only for a temporary period of time.
Prohibited Actions
The PWFA also prevents employers from forcing a pregnant employee to accept an accommodation without a discussion about the accommodation between the worker and the employer.
Employers cannot deny a job or other employment opportunities to a qualified pregnant employee based on that person’s need for reasonable accommodation. They also cannot require a pregnant employee to take leave if a reasonable accommodation can be provided that would allow them to keep working.
Employers cannot retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or for participating in a PWFA proceeding.
Best Practices
Pregnant employees should communicate to their employer their accommodation request. They can mention the PWFA, but it is not required, as being pregnant is sufficient. They should outline why they are making the request, what accommodation they need and how long they would need it.
Employers should then have a good-faith conversation to help meet the worker’s needs. Documentation of the process is advised. The EEOC will be providing more guidance on whether an employer can legally request supporting documentation, such as a note from a healthcare provider.
Employers should provide training to human resources and supervisors on potential reasonable accommodations for their pregnant workers. Also, take the time to share what the PWFA protects with employees so they are aware of their rights. According to the U.S. Census Bureau, 72 percent of working women will become pregnant while employed at some time in their lives.
If an accommodation is too difficult for an employer, they would need to provide proof that it would create “undue hardship,” meaning it would be too costly or burdensome for the business to provide.
“Since this is just a temporary condition, it’s going to be extremely hard for an employer to say, ‘Oh, I couldn’t do that for a few weeks or a month or even a few months,’” Elizabeth Gedmark, vice president of A Better Balance, told The 19th News. “The assumption should really be: This is going to be workable.”
