Employers should be aware of additional legal protections for pregnant workers

This article, written by attorney Liz Bailey, was originally published by seacoastonline.com and can be found here.

Existing federal and state laws provide legal protections for covered employees due to pregnancy and pregnancy related conditions, including leave from work and reinstatement rights, as well as prohibitions against discrimination or retaliation due to pregnancy, childbirth or related medical conditions. Employers should also be aware of the Pregnant Workers Fairness Act (PWFA) which now provides covered workers with additional legal rights.

The PWFA went into effect on June 27, 2023. The PWFA is enforced by the federal Equal Employment Opportunity Commission (the EEOC), which also enforces some other federal employment discrimination laws, such as Title VII of the Civil Rights Act (including pregnancy discrimination) and the Americans with Disabilities Act or the ADA (related to disability discrimination). The PWFA applies to “covered employers” including private and public sector employers with at least 15 employees, employment agencies and labor organizations. The PWFA does not replace federal, state or local laws which are more protective of workers affected by pregnancy, childbirth or related medical conditions.

The PWFA requires covered employers to provide “reasonable accommodations” to a worker’s known limitations which are related to pregnancy, childbirth or related medical conditions unless the accommodation in question would cause the covered employer an “undue hardship. In general, “reasonable accommodations” may involve changes such as, but not limited to, the ability for an affected employee to:

  • Have flexible work hours
  • Sit or drink water
  • Receive appropriately sized uniforms or appropriately sized safety apparel
  • Receive additional break time to use the restroom, or to eat, or to rest
  • Take leave or time off to recover from childbirth
  • Be excused from strenuous work activities
  • Be excused from work activities that involve exposure to compounds which are unsafe for pregnancy
  • Receive closer parking

The PWFA also prohibits certain conduct by covered employers. Under the PWFA, a covered employer may not:

  • Require a covered employee to accept an accommodation without discussing the accommodation with the employee;
    • Deny a qualified employee or qualified applicant a job/employment opportunities based on that person’s need for a reasonable accommodation;
    • Require a covered employee to take leave if the employer can provide another reasonable accommodation which would let the employee keep working;
    • Retaliate against an individual from reporting or opposing discrimination which is illegal under the PWFA;
    • Retaliate against an individual for participating in a proceeding under the PWFA, including an investigation;
    • Interfere with an individual’s PWFA rights.

As covered employers get up to speed about the requirements of the PWFA, they should not lose sight of complying with other applicable existing laws which continue to provide protections to covered employees such as Title VII, the ADA, the Family and Medical Leave Act, the Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act), and other corresponding state laws. The good news: the EEOC has published practical and easy to understand guidance, as well as resources including notices and posters, for employers to learn more about the PWFA and how to comply with it. https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.