New Federal Law Requires Reasonable Accommodations for Pregnant Workers: What Employers Need to Know
“Omnibus” is defined as providing for many things at once, and the new federal omnibus funding bill is exactly that. In addition to the critical action of funding the government, it contains a multitude of unrelated new laws, including the Pregnant Workers Fairness Act (as well as the new workplace breastfeeding law, discussed elsewhere in this E-Update). The PFWA, which is largely modeled on the Americans with Disabilities Act and existing State law protections for pregnant workers, requires employers with 15+ employees to provide pregnancy-related reasonable accommodations to employees and applicants, absent an undue hardship.
Who Is Protected. The PFWA protects individuals with “known limitations,” meaning a physical or mental condition arising from pregnancy, childbirth, or a related medical condition, whether or not the condition constitutes an ADA-covered disability. As under the ADA, the individual must be “qualified,” meaning that they are able to perform the essential functions of the job, with or without reasonable accommodation. The PFWA goes on to specifically provide that the individual will be considered qualified if: they are only temporarily unable to perform an essential job function; they will be able to perform that function in the near future; and the inability to perform the function can be reasonably accommodated. The individual must notify the employer of their limitation and need for accommodation.
What Employers Must (and Must Not) Do. The PFWA requires employers to provide reasonable accommodations for pregnancy/childbirth-related limitations, absent an undue hardship. (The standards for whether an accommodation is reasonable and whether it poses an undue hardship are the same as under the ADA). As with the ADA, employers must engage in an interactive process to identify possible accommodations, and may not require an employee to accept an accommodation that was not identified as part of this process. Employers also may not require an employee to take leave if another accommodation is available. Moreover, they may not deny employment opportunities to an individual because they need a reasonable accommodation. Retaliation for exercising rights under the PFWA, including for requesting or using a reasonable accommodation, is prohibited.
What Next? The EEOC is directed to issue regulations to implement the new PFWA within one year. The regulations will provide examples of reasonable accommodations for pregnancy/childbirth-related conditions. The law will not preempt State laws that provide greater protections.
At this time, employers should watch out for the forthcoming regulations, which will first be issued in proposed form for public comment, before being issued in final form. But in the meantime, and even after the regulations issue, employers should be mindful of any applicable state laws requiring pregnancy/childbirth accommodations, as such laws may contain more requirements and/or restrictions with regard to what accommodations must be considered and provided.
