In addition to funding the federal government, the recently passed $1.7 trillion government funding package included passage of the Pregnant Workers Fairness Act (“PWFA”). Filling a gap left by current federal employment protections and modeled off of the Americans with Disabilities Act (“ADA”), the PWFA requires employers to make temporary and reasonable accommodations for pregnant employees and applicants.
The PWFA requires employers to make reasonable accommodations to “known limitations” related to pregnancy, child birth, or related medical conditions of a “qualified” employee or applicant, unless the employer can demonstrate that the accommodation would impose an undue burden. Prior to the passage of the PWFA, the Pregnancy Discrimination Act barred discrimination based on pregnancy, but did not require employers to provide workplace accommodations. The PWFA applies to private employers covered by Title VII (those with 15 or more employees for at least 20 weeks in the preceding calendar year).
“Reasonable accommodation” and “undue burden” have the same meaning as they do under the ADA. “Known limitation” is defined as any physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee has communicated to the employer. Significantly, a “known limitation” does not have to meet the definition of “disability” under the ADA. Like the ADA, “qualified employee” means an individual who can perform the essential functions of the job with or without reasonable accommodation; but, unlike the ADA, employees are still “qualified” under the PWFA if their inability to perform an essential function is for a temporary period, the essential function could be performed in the near future, and the inability to perform the essential function can be reasonably accommodated.
As under the ADA, employers have an obligation under the PWFA to engage in an “interactive process” with employees to arrive at a reasonable accommodation. The employer may not require a qualified employee to accept an accommodation other than one arrived at through the interactive process. In particular, employers may not require employees to take leave (whether paid or unpaid) if another reasonable accommodation can be provided. The PWFA also contains anti-retaliation provisions protecting employees from adverse actions for using or requesting a reasonable accommodation, or for opposing acts made unlawful by the PWFA or for participating in investigations or proceedings concerning alleged violations of the PWFA.
The PWFA will not take effect until June 27, 2023. In the meantime, Stites & Harbison employment attorneys can advise you regarding your obligations under the PWFA, assist with training managers and human resource professionals, and help update your handbooks and policies accordingly.