The Pregnant Workers Fairness Act (PWFA) has ushered in a new era of workplace protections for pregnant employees. This groundbreaking legislation, which went into effect on June 27, 2023, mandates that employers provide reasonable accommodations to pregnant workers unless doing so would impose an undue hardship. With the Equal Employment Opportunity Commission (EEOC) issuing final regulations on April 15, 2024, and these regulations taking effect on June 18, 2024, it’s imperative that employers understand their obligations under this law.
What is the Pregnant Workers Fairness Act?
The PWFA is a federal law that prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. It requires employers to provide reasonable accommodations to pregnant workers with known limitations related to their pregnancy, unless doing so would cause undue hardship. This law expands upon the protections offered by the Pregnancy Discrimination Act (PDA) by focusing on accommodations rather than simply prohibiting discrimination.
What Are the Key Obligations of Covered Employers?
Covered employers, those with 15 or more employees, must not:
- Fail to make a reasonable accommodation: Employers must provide reasonable accommodations for pregnant workers with known limitations unless doing so would cause undue hardship. This includes making existing facilities readily accessible to and usable by individuals with disabilities. For example, if an employee needs to sit due to pregnancy-related limitations, the employer must provide a stool if feasible.
- Require an employee to accept an unreasonable accommodation: The accommodation must be mutually agreed upon through an interactive process. Employers cannot force an employee to accept an accommodation that is not reasonable or effective.
- Deny employment opportunities: Employers cannot deny jobs or promotions to qualified pregnant applicants or employees based on their need for accommodations. This includes hiring, firing, promotions, compensation, or training decisions.
- Force employees to take leave: If a reasonable accommodation can be provided to allow the employee to continue working, the employer cannot require them to take leave. This could include modified work schedules, job restructuring, or providing assistance with manual tasks.
- Retaliate against employees: Employers cannot punish or retaliate against employees for requesting or using accommodations, reporting discrimination, or participating in PWFA proceedings. Retaliation can include demotions, reductions in pay, negative performance reviews, or threats of job loss.
- Coerce employees: Employers cannot coerce individuals from exercising their rights under the PWFA or assisting others in doing so. This includes creating a hostile work environment or interfering with an employee’s ability to communicate with the employer about their pregnancy-related needs.
Presumptively Reasonable Accommodations
The PWFA specifically lists certain accommodations as presumptively reasonable. These include:
- Allowing employees to carry and drink water as needed.
- Allowing employees to take additional restroom breaks as needed.
- Allowing employees to sit or stand as needed.
- Allowing employees to take breaks for eating and drinking.
While these accommodations are presumed reasonable, employers can still challenge them if they can demonstrate undue hardship. However, the burden of proof is on the employer to show that the accommodation would cause significant difficulty or expense.
Examples of Reasonable Accommodations Under the PWFA
Beyond the presumptively reasonable accommodations, there are countless other potential accommodations. Some examples include:
- Modifying equipment, devices, or workstations: Providing ergonomic keyboards, adjustable desks, or supportive footwear.
- Offering telework options: Allowing employees to work from home or a remote location to reduce exposure to hazards or commute time.
- Temporarily reassigning the employee to a different position: Assigning the employee to tasks that do not require lifting, bending, or prolonged standing.
- Temporarily suspending non-essential job functions: Relieving the employee of marginal job duties that are not critical to their role.
- Providing leave for healthcare appointments: Allowing employees to take time off for prenatal care, ultrasounds,and other medically necessary appointments.
- Offering light duty or assistance with manual labor: Providing help with lifting, carrying, or other physically demanding tasks.
- Providing leave for recovery from childbirth: Offering paid or unpaid leave for employees to recover from childbirth and bond with their newborn.
- Modifying uniform or dress code requirements: Allowing employees to wear looser-fitting clothing or providing alternative uniform options.
The Interactive Process
The interactive process is a collaborative effort between the employee and employer to determine appropriate accommodations. This process involves open communication and a willingness to explore options. The employee should inform the employer about any pregnancy-related limitations and request accommodations. The employer should then engage in a good-faith discussion to identify suitable options. It’s important to note that the needs of pregnant employees can change throughout pregnancy, requiring ongoing communication and adjustments to accommodations.
Documenting the Process
Employers should maintain clear and accurate documentation of the interactive process. This documentation should include:
- The employee’s request for accommodation
- The employer’s response and proposed accommodations
- Any discussions or meetings held
- The final accommodation agreed upon
- Any efforts made to explore alternative accommodations
Proper documentation can help protect the employer in case of a potential claim of discrimination.
Undue Hardship
An employer may deny a reasonable accommodation if it can demonstrate that providing the accommodation would cause undue hardship. This means that the accommodation would be significantly challenging or expensive. However, the employer must be able to show that the hardship is more than a mere inconvenience. Factors to consider when determining undue hardship include:
- The nature and cost of the accommodation
- The size, resources, nature, and structure of the employer’s business
- The number and type of employees
- The impact of the accommodation on operations
Enforcement and Penalties
The EEOC enforces the PWFA. Employees who believe their rights have been violated can file a charge of discrimination with the EEOC. If the EEOC finds that the employer has violated the law, it can seek injunctive relief, back pay, and compensatory damages. Employers who fail to comply with the PWFA may also face private lawsuits.
Conclusion
The PWFA is a significant step forward in protecting the rights of pregnant workers. By understanding the law’s requirements and implementing effective policies and procedures, employers can ensure compliance and create a supportive workplace for all employees. It is essential for employers to stay informed about the PWFA and its regulations to avoid potential legal issues.
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