By: Ty Hyderally, Esq. Francine Foner, Esq., and Adela Barbura

Pregnant and postpartum employees were regularly constrained in their capability of obtaining reasonable accommodation in their place of employment due to the lack of support in prior law and legislation. However, new laws have rid pregnant and postpartum employees of these barriers by granting them the protections they need. On December 29, 2022, President Joe Biden signed into law the Pregnant Workers Fairness Act (“PWFA”), which went into effect on June 27, 2023, for most covered pregnant employees.

The PWFA was enacted to address the shortcomings experienced by pregnant employees in obtaining necessary workplace accommodations under the Pregnancy Discrimination Act (“PDA”), with the goal of safeguarding both their health and job stability. Under the PWFA, pregnant workers are now granted an affirmative right to reasonable accommodations, absent an undue hardship for employers.

The PDA did not grant an affirmative right to reasonable accommodation for pregnant workers. Rather, it utilized a comparative standard that left millions of pregnant workers unprotected and susceptible to discriminatory treatment. In fact, employers began using the PDA as a shield to conceal discriminatory practices against their pregnant workers. However, the PWFA provides solutions to these shortcomings of the PDA, by guaranteeing pregnant workers the affirmative right to receive reasonable accommodations for known limitations stemming from pregnancy, childbirth, and related medical conditions.

Under the PWFA, “covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations. The PWFA protects qualified employees and applicants of “covered employees” who have a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” and have informed their employer of the condition. PWFA § 102(4).

Further, employers are prohibited from coercing pregnant employees into unwanted accommodations or leave. The PWFA prohibits covered employers from:

• Requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
• Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
• Interfering with any individual’s rights under the PWFA.

(U.S. Equal Employment Opportunity Commission, What You Should Know About the Pregnant Workers Fairness Act, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act).

Examples of Reasonable Accommodations

The House Committee on Education and Labor Report on the PWFA and the U.S. Equal Employment Opportunity Commission (“EEOC”) have provided several examples of reasonable accommodations for pregnant workers including:

• Frequent breaks;
• Sitting/Standing;
• Schedule changes, part-time work, and paid and unpaid leave;
• Telework;
• Parking;
• Light duty;
• Making existing facilities accessible or modifying the work environment;
• Job restructuring;
• Temporarily suspending one or more essential functions;
• Acquiring or modifying equipment, uniforms, or devices; and
• Adjusting or modifying examinations or policies.

The EEOC also identified “a limited number of simple modifications that will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by an employee due to pregnancy.” These modifications include: “(1) allowing an employee to carry water and drink, as needed, in the employee’s work area; (2) allowing an employee additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, and (4) allowing an employee breaks, as needed, to eat and drink.” (U.S. Equal Employment Opportunity Commission, Summary of Key Provisions of the EEOC’s Proposed Rule to Implement the Pregnant Workers Fairness Act (PWFA), https://www.eeoc.gov/summary-key-provisions-eeocs-proposed-rule-implement-pregnant-workers-fairness-act-pwfa).

By granting pregnant workers with an affirmative right to reasonable accommodations, the PWFA signals a pivotal shift towards more comprehensive legislative measures aimed at protecting the rights of pregnant workers and combating pregnancy discrimination in the workplace. Contact a Hyderally & Associates attorney today if you have any questions about the PWFA or if you believe that your employer has failed to comply with the provisions of the PWFA.

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