Tuesday, June 20, 2023

Is your business prepared for the Pregnant Workers Fairness Act?

Consider the following scenarios:
  • A pregnant employee has already used her annual allotment of FMLA leave and has no FMLA leave available to use for any reason.
  • A pregnant employee has worked for you less than one year and therefore does not qualify for FMLA leave.
  • You have fewer than 50 employees and therefore none of your employees, including your pregnant employees, qualify for FMLA leave.

Now consider a pregnant employee in any of these three situations who needs a leave of absence for the employee's limitations related to pregnancy, childbirth, or related medical conditions. What are your legal obligations?

Until seven days from now, the answer was grey and depended on whether your treatment of comparably limited non-pregnant employees in similar situations could be perceived as pregnancy discrimination against the pregnant worker.

On June 27, 2023, however, the Pregnant Workers Fairness Act (which President Biden signed late last year) goes into effect, dramatically altering the legal obligations of most employers to its pregnant workers.

The PWFA requires any employer with 15 or more employees to provide "reasonable accommodations" to an employee's known limitations related to pregnancy, childbirth, or related medical conditions (unless the accommodation will cause the employer an "undue hardship," defined as a  significant difficulty or expense for the employer).

What reasonable accommodations does the PWFA contemplate. According to the EEOC, potential accommodations include:
  • the ability to sit or drink water; 
  • receive closer parking; 
  • have flexible hours; 
  • receive appropriately sized uniforms and safety apparel; 
  • receive additional break time to use the bathroom, eat, and rest; 
  • take leave or time off to recover from childbirth; 
  • and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

Similar to reasonable accommodations for disabled employees, the key here is communication. Once a pregnant worker requests a pregnancy accommodation, an employer must engage in the interactive process with the worker to determine the proper accommodation for the employee. An employer cannot, for example, require an employee to accept an accommodation without a discussion about the accommodation or require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working.

An employer also cannot deny a job or other employment opportunity to a qualified employee or applicant based on the person's need for a reasonable accommodation, nor can it retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding such as an investigation.

Finally, check your state and local laws; 30 states already have laws that provide protections for pregnant workers, and the PWFA does not supersede state laws that offer greater protections. (Ohio is not one such state.)

The PWFA is a significant change to Title VII an employers' obligations to its pregnant workers. You have less than seven days to prepare, including making sure your supervisors and managers are aware of this new law and the legal obligations it imposes and updating your reasonable accommodation policies. The clock is ticking.