A new law provides greater rights to pregnant workers.
Pregnancy is a major life event affecting numerous aspects of a person’s life. Previously, pregnancy was not a qualifying condition under the Americans with Disabilities Act (ADA), and pregnant employees could not solely rely on then-existing law to receive workplace accommodations on basis of their pregnancies.
In contrast, the Pregnant Workers Fairness Act (PWFA) requires an employer to provide reasonable accommodations for limitations resulting from or related to an employee’s pregnancy, recent childbirth, or other related medical conditions. Our experience3d pregnancy discrimination lawyers provide the following information about a recent change in the law that will certainly benefit pregnant workers.
What is the Pregnant Workers Fairness Act?
Signed into law in 2022, the PWFA was enacted to promote women’s health and financial security when their ability to perform certain job duties becomes limited by pregnancy, childbirth, or other related medical conditions.
The PWFA requires employers to provide reasonable accommodations for an employee’s known limitations that relate to, or are affected by, a pregnancy, childbirth, or other related medical condition, unless doing so would be an undue hardship for the employer.
Therefore, when an employee is unable or has greater difficulty performing an essential work task due to her pregnancy, childbirth status, or other such related medical condition, an employer is required to permit certain reasonable changes to an employee’s work environment or conditions as necessary so long as the employer is not significantly burdened.
An undue hardship for the employer could include significant difficulty or expense for the employer if the employer were to implement an accommodation. An employer’s size, financial resources, needs of the business and/or needs of the job factor into when an accommodation is unduly burdensome.
Things To Know About PWFA And Other Protections For Pregnant Employees
- The PWFA applies to private and public sector employers with at least 15 employees.
- The PWFA applies to specific scenarios where a pregnant employee is no longer able to fully perform all of her normal work duties due to certain known limitations and requires an employer to provide reasonable accommodations. These “known limitations” must be related to, affected by, or arise out of pregnancy, childbirth, or related medical conditions.
- Employers cannot deny a job applicant or determine employment opportunities for advancement based on a woman’s pregnancy/childbirth status or her need for reasonable accommodations relating to her pregnancy, childbirth, or other reacted medical conditions.
- Employers cannot force a pregnant employee to accept an accommodation unless the employer and employee have discussed it previously.
- When an employer has multiple options for accommodations, an employer cannot require a pregnant employee to take time off work if alternative accommodations are available that would allow the employee to remain at work and that would not unduly burden the employer.
- The PWFA also protects employees from retaliation as a result of requesting or utilizing an accommodation or reporting unlawful discrimination under the PWFA.
- Retaliation includes taking adverse actions as to the terms, conditions, privileges, and benefits of employment.
- Employers are prohibited from interfering with an employee’s rights under the PWFA with threats or coercion.
What Are Reasonable Accommodations Under the PWFA?
Some examples of possible accommodations could be more flexible work hours, telework/remote work from home, additional time to take breaks and rest, designated parking that is close to the worksite, the ability to sit down and/or drink water while working, and time off to recover from childbirth. Other accommodations include exempting an employee from strenuous activity or exposure to hazardous chemicals that affect pregnancies. Additionally, an employer may be required to permit leave for a pregnant employee’s medical appointments.
These accommodations are not the only accommodations an employee may need and the accommodations an employee may receive are scenario specific. An employee may not be entitled to the specific accommodation requested, but the employer is required to reasonably accommodate the employee’s pregnancy.
The PWFA applies not only to limitations directly related to pregnancy, but also to childbirth and related medical conditions. For example, the PWFA would require an employer to implement a reasonable accommodation when a pregnant employee is concerned that lifting heavy boxes would harm their pregnancy. As another example, giving an employee time off to recover from childbirth would be a reasonable accommodation because the change in her employment condition (time off) would be related to maintaining her health after childbirth.
Importantly, the PWFA provides broader protections for pregnant employees than the ADA. A limitation does not need to meet the definition of a “disability” under the ADA. That is, an employee’s “known limitation” that would not constitute a disability under the ADA could still be covered by the PWFA. For example, PWFA does not set a duration or severity standard for a condition to qualify under the PWFA, while the ADA requires that a disability impact a major life activity and be neither minor nor transitory (lasting less than six months).
The EEOC suggests that known limitations and accommodations relating to, arising out of, or affected by “pregnancy, childbirth, or related medical conditions” also include time off to recover from miscarriage and still birth, attend healthcare appointments, and receive health care treatment related to pregnancy, childbirth, or related medical conditions. Other conditions that the EEOC and the Courts have recognized as related to pregnancy and childbirth include current pregnancy, past pregnancy, potential pregnancy, lactation, menstruation, infertility and fertility treatments, endometriosis miscarriage, and/or still birth.
Furthermore, pregnant employees seeking the benefits of the PWFA are not required to provide documentation or verification of their condition, unlike employees who require accommodations under the ADA. PWFA does not prescribe a standardized or official process for requesting or negotiating accommodations, therefore, requests may be made orally as well as in writing. Additionally, it is unlawful for an employer to mandate a specific format or method for PWFA accommodation requests to be made.
What Rights do Pregnant Workers have Under the PUMP Act?
The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) gives a nursing employee the right to receive break time to pump and/or express breast milk as well as a clean, private place to pump while at work. PUMP applies to employers regardless of workforce size, although employers with less than 50 employees might be exempted from PUMP if doing so would constitute an undue hardship to that employer.
Under the Fair Labor Standards Act (FLSA), employees have been required to allow an employee reasonable time to express breast milk for their nursing child up to one year after the child’s birth, whenever the employee has such need. Nursing mothers must be provided a clean place to pump, other than a restroom, that is private and free from intrusion from coworkers the other members of the public. Salaried employees are also protected by PUMP. All employers who are covered by the FLSA are subject to PUMP.
PUMP also dictates that an employee must be completely relieved of work duties when she is taking time to pump, otherwise, she must be paid for that break time if she performs work duties while pumping.
Key Considerations For Family Planning:
- PWFA: The Pregnant Workers Fairness Act requires employers to provide reasonable accommodations when employees have known limitations relating to, affected by, or arising from pregnancy, childbirth, or other related medical conditions, so long as the accommodations do not pose an undue hardship on the employer.
- Title VII: Title VII (as amended by the Pregnancy Discrimination Act of 1978) prohibits employers from firing or denying employment to an employee or job applicant due to her pregnancy or related medical condition.
- FMLA: The Family and Medical Leave Act provides certain employees the right to take unpaid leave to handle certain qualifying family and medical issues without risking termination or other adverse action. FMLA leave can extend up to twelve (12) weeks (three months). To qualify, the employer must have at least 50 employees and the employee must have been employed for at least 12 months by the employer before taking leave with at least 1,250 hours of work. An employee requesting foreseeable leave (e.g., parental leave after the birth of a child) must notify their employee within 30 days.
- PUMP: Expanding on the FLSA, the Providing Urgent Maternal Protections for Nursing Mothers Act requires covered employers to give nursing mothers reasonable time to express breast milk for their nursing child up to one year after the child’s birth. Both salaried and hourly, non-exempt employees are protected by PUMP.
Who do I contact with Questions about my Rights Related to My Pregnancy?
If you have any questions about your employment rights related to your pregnancy, including but not limited to your rights to an accommodation, our pregnancy discrimination attorneys are here to assist you. If you would like a free consultation with one of our pregnancy discrimination lawyers, feel free to contact our firm. We look forward to the opportunity to speak with you about your rights.