Congress has passed a law regarding pregnant workers that will go into effect June 27, 2023. While short notice, an explanation will show that the impact of this law is not as far-reaching as some blogs and HR “specialists” have reported.
What Does The Law Say?
The law states that “covered employers” must make “reasonable accommodations” to employees with “known” limitations related to pregnancy, childbirth or related medical conditions unless such accommodations present an “undue hardship” on the employer’s operations. The law only applies in states that do not have such existing protections (already in place in over 30 states). PWFA applies only to work accommodations. Existing laws (Title VII of the Civil Rights Act and the Americans With Disabilities Act) already protect many employees from discrimination based on pregnancy, childbirth, or related conditions.
Who Is A Covered Employer?
Employers with 15 or more employees are covered under this Act. While employers with less than 15 employees are not specifically obligated by this new law (or Title VII or the Americans With Disabilities Act), PCS recommends all employers consider helping employees within the abilities of each individual practice.
What Does “known limitations” mean?
Under Federal law, pregnancy is not considered to be a disability, therefore the employer can only be held liable for addressing limitations from pregnancy and childbirth that are specifically brought to their attention by the employee.
What is a “reasonable accommodation”?
PWFA defines reasonable accommodations as “changes to the work environment or the way things are usually done at work”. Typical vague government definition but some examples are provided. They include the ability to sit or drink water more often; 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. Obviously, proposed accommodations can vary widely based on individual practice situations.
What is an “undue hardship”?
This definition is even more elusive. The same language is used in Title VII and the ADA laws. The most basic definition is something that causes “significant difficulty or expense” for the employer. This will obviously also vary widely based on individual practice situations. The key is that an employer must be able to defend their determination of undue hardship.
What Else Does PWFA prohibit?
Like most state pregnancy accommodation laws, PWFA prohibits:
- 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.
What the PWFA Does NOT Do
PWFA does not mandate any of the following actions on the part of the employer.
- Provide any PAID time off or leave of absence (although this could be covered under some individual state laws)
- Provide ANY accommodation requested by the employee determined to be an undue hardship
- Guarantee any return to work for employees who take time off for pregnancy or childbirth beyond individual state law or employer’s individual policies as stated in their Employee Manual (unless covered under some individual state law)
What Should I Do?
Refer to individual state law (specifics provided to PCS Human Resource package clients). In most all cases, PWFA does not supersede State law.
- TALK TO YOUR EMPLOYEES. If an employee states they are having problems but wants to continue working, make every reasonable effort to find a mutually agreeable solution.
- Be generous and kind but in the end, remember you have a business to run.
- Although not a stated requirement of the Act, a poster is available in your employee notifications area. https://www.eeoc.gov/sites/default/files/2023-05/PWFA%20%28Healthcare%20Poster%29-11_508%20FINAL.pdf
If you have specific questions, contact PCS or your human resource consultant for more information.
