While 80% of working women disclose their pregnancies to employers, a shocking 25% contemplate leaving their positions due to a lack of reasonable accommodations or discrimination fears. This has influenced an influx of Equal Employment Opportunity Commission (EEOC) workplace discrimination claims, with over 35,000 cases reported and $170 million in citations from the EEOC in the past decade.

To address this issue, the Pregnant Workers Fairness Act (PWFA) was introduced on June 27, 2023. Discover the ins and outs of this landmark legislation to safeguard your organization from potential claims and penalties.

What is the Pregnant Workers Fairness Act (PWFA) 2023?

The PWFA is an amendment to the Americans with Disabilities Act (ADA) that specifically addresses accommodations for pregnant workers. This groundbreaking law requires employers to provide reasonable accommodations for pregnant employees, ensuring they can fulfill their duties without compromising their health or wellbeing. However, the PWFA doesn’t supersede any federal, state or local laws that provide greater protection for workers impacted by pregnancy, childbirth or related medical conditions. It should be noted that existing laws already prohibit discrimination based on pregnancy, childbirth or related medical conditions.

Generally, under the PFWA, a qualified employee refers to an individual who can fulfill the fundamental duties of an employment position, with or without reasonable accommodation. The PFWA applies to a category of employers identified as “covered employers,” “which encompasses private- and public-sector employers with a minimum of 15 employees, along with federal agencies, employment businesses and labor organizations.

Examples of PWFA Violations

• Mandating an employee to accept an accommodation without discussing it with them.
• Discriminating against a qualified employee or applicant by denying them a job or other employment opportunity due to their need for a reasonable accommodation.
• Requiring that an employee take a leave of absence from their job if a reasonable accommodation would permit them to continue working.
• Taking retaliatory actions against an employee who engages in a PWFA investigation or other related proceeding, or who reports or opposes unlawful discrimination under the PFWA.
• Disrupting an individual’s rights in accordance with the PWFA.

Reasonable Accommodations & Undue Hardships Defined by the PWFA

Employers should conduct a thorough examination of their accommodation policies and procedures to ensure compliance with legal obligations.

Reasonable Accommodation: Pertains to adjustments or modifications in the work environment or way a job is performed that enable a person to enjoy equal employment opportunities. The House Committee on Education and Labor’s Report on the PWFA provided examples of possible reasonable accommodations including the ability to:

• Engage in several childbirth recovery practices, such as sitting, staying hydrated, parking in closer proximity to destinations, periodically taking breaks, adopting flexible work hours and utilizing available leave or time off options.
• Receive uniforms and safety apparel that are appropriately sized.
• Request exemption from strenuous activities and/or exposure to potentially harmful environments or substances that pose pregnancy risks.

Undue Hardship: Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An undue hardship is a significant difficulty or expense for the employer.

Additional EEOC Employer Risks Under the PWFA

Employers are now obligated to offer reasonable accommodations to eligible employees and applicants with identified limitations due to pregnancy, childbirth or related medical conditions. The requirement can only be waived if the employer can prove the accommodation would impose an undue hardship on the business’ operations. The PWFA also specifically prohibits employers from:

• Mandating a qualified employee to accept an accommodation without the worker and employer discussing the accommodation.
• Rejecting any employment opportunity for a qualified employee or applicant based on their request for a reasonable accommodation.
• Enabling an employee to continue fulfilling their work duties if a reasonable accommodation would enable the employee to continue working.
• Taking punitive measures against a qualified employee in response to their request for reasonable accommodation related to the employee’s pregnancy, childbirth or related medical condition.
• Imposing retaliatory action against an individual who opposes or reports unlawful discrimination under the PWFA or engages in activities related to PWFA proceedings (e.g., violation investigations).
• Violating the rights of any individual under the PWFA.

We’re Here to Help Your Organization Remain Compliant

Unfortunately, so many women feel they need to choose between their careers and motherhood. Fortunately, by complying with the new PWFA regulations, employers can avoid penalties and lawsuits as well as create an inclusive work environment. To learn more about how to reduce the risk of discrimination claims and ensure you have the right insurance coverage, connect with a member of our team