by The Equal Employment Opportunity Commission (EEOC) has announced that it is ready to accept discrimination claims under the Pregnant Workers Fairness Act (PWFA). Enacted in late 2022, the PWFA requires employers with 15 or more employees to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. The effective date of the new law was June 27, 2023, and the agency will accept claims of alleged discrimination occurring on or after that date. To assist employees and employers in understanding the law, the EEOC recently published guidance on what kind of employer actions could result in a viable discrimination claim under the PWFA. https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
The new law does not replace other applicable state or federal employment laws. Other federal laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Family and Medical Leave Act, afford rights and discrimination protection for pregnant employees in many circumstances. State laws may place pregnancy accommodation obligations on employers that are greater than the PWFA. If a state law provides greater protections or rights for an employee, the terms of the state law apply. For example, Minnesota’s recent changes to its pregnancy accommodation law mean it covers more employers than the PWFA (i.e., all employers in the state with one or more employees.)
The PWFA only applies to how employers respond to requests for accommodation. The EEOC describes ‘reasonable accommodations’ under PWFA as changes to the work environment or how things are usually done at work. The agency lists several examples of possible PWFA accommodations:
- Making an exception to a workplace policy to allow the employee to sit or drink water on the job;
- Assigning a parking space closer to the workplace;
- Providing special uniforms or safety equipment;
- Providing additional break time;
- Providing leave to recover from childbirth; and
- Excusing the employee from strenuous activities or other situations that may not be safe for pregnancy.
In the guidance, the agency identifies the following employer actions that could result in a viable PWFA claim by an individual:
- Denying a reasonable accommodation unless the employer can establish an ‘undue hardship’ (i.e., significant difficulty or expense for the employer);
- Denying a job or other employment opportunities to a qualified employee or applicant based on the individual’s need for a reasonable accommodation;
- Retaliating against an individual for reporting or opposing unlawful discrimination;
- Imposing an accommodation on an employee without an interactive accommodation process where both employee and employer discuss temporary obstacles to job performance and ways to overcome them;
- Requiring an employee to take a leave of absence if another reasonable accommodation is possible that would let the employee keep working; and
- Interfering with rights under the PWFA.
Employers are encouraged to review the EEOC PWFA compliance guidance, along with relevant state pregnancy accommodation laws. Even for employers that have routinely addressed pregnancy accommodation requests in the past, the 2023 federal and state law changes to pregnancy accommodation obligations may include some subtle changes to their responsibilities.
