What Is the Pregnant Workers Fairness Act?
The Pregnant Workers Fairness Act prohibits employment practices that discriminate against pregnant workers by failing to make reasonable accommodations that would allow those workers to perform the essential functions of their job. It was signed into law by President Biden, as part of the Consolidated Appropriations Act of 2023, on Dec. 29, 2022.
Specifically, Section 103 of the act makes it illegal to:
- Fail to reasonably accommodate known limitations of pregnant employees unless the accommodation would impose an undue hardship on the employer’s business operations.
- Require a pregnant employee to accept an accommodation other than one arrived at through an interactive process.
- Deny employment based on the employer’s need to make reasonable accommodations to a pregnant employee.
- Require a pregnant employee to take paid or unpaid leave if another reasonable accommodation can be provided.
- Take adverse action in terms, conditions, or privileges of employment against a pregnant employee requesting or using reasonable accommodations.
The law establishes enforcement procedures and remedies that cover different types of employees in relation to unlawful employment practices. It includes a provision requiring examples of reasonable accommodations to be provided to pregnant workers and prohibits state immunity from provisions of the law. It goes into effect on June 27, 2023.
- The Pregnant Workers Fairness Act requires employers to make reasonable accommodations to qualified workers unless doing so would create an undue hardship on the employer.
- The act was signed into law on Dec. 29, 2022, and takes effect on June 27, 2023.
- Under Section 103 of the new law, employers may not refuse to accommodate limitations; require acceptance of a noninteractive process accommodation; deny employment; require leave; or take adverse action against a qualified employee or applicant.
Understanding the Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act—much like the Americans with Disabilities Act (ADA)—legally obligates employers to make reasonable accommodations to eligible workers. The exception: if doing so would create an undue hardship on the employer.
The term “reasonable accommodation” includes making existing facilities readily accessible; restructuring job schedules; reassignment; or modification of equipment.
The term “undue hardship” includes any action requiring significant difficulty or expense to the employer. It considers the nature and cost of the accommodation, the overall financial resources of the business, and the type of operation of the business.
The act applies to employers with 15 or more employees. It requires them to provide reasonable accommodations for qualified employees and job applicants who have limitations due to pregnancy, childbirth, or other related conditions.
Small businesses with fewer than 15 employees are exempt from the Pregnant Workers Fairness Act.
An employee or job applicant is considered eligible if, with a reasonable accommodation, they can perform the essential functions of their job or potential job. Even if an individual is temporarily unable to perform an essential function, they are still eligible if the function can be performed in the near future and their inability to perform the essential function can be reasonably accommodated.
The Pregnant Workers Fairness Act, like the ADA, incorporates an interactive process. This consists of a good-faith discussion between employer and employee/applicant to attempt to identify a reasonable accommodation.
Under the new law, employers may not require an employee or applicant to accept an accommodation that was not arrived at through the interactive process.
An employer may not require an employee to take paid or unpaid leave if another reasonable accommodation can be provided. Retaliation against an employee or applicant for requesting a reasonable accommodation is also prohibited.
Under previous federal law, courts did not consider pregnancy a disability entitled to a reasonable accommodation under the ADA. Instead, employers were only required to provide reasonable accommodations when an individual’s pregnancy, childbirth, or related medical condition rose to the level of a disability under the ADA—or when accommodations were made for other similarly situated, but nonpregnant, workers.
Legal Remedies for Violations of the Act
The Pregnant Workers Fairness Act establishes that violations of Section 103 of the act constitute unlawful employment practices. For private-sector employees, it tracks the enforcement powers, procedures, and remedies established under the Civil Rights Act of 1964. Public-sector employees have similar protections through the Congressional Accountability Act, Title V of the United States Code, and the Government Employee Rights Act of 1991.
Under these statutes, a court may award lost pay, interest, compensatory damages, punitive damages, costs, reasonable attorneys’ fees, and experts’ fees to the extent that such relief is available under the law.
The Pregnant Workers Fairness Act also prohibits retaliation against individuals who express opposition to acts or practices made unlawful by the law. It prohibits coercion, intimidation, threats, or interference with individuals who have exercised, or have aided or encouraged another to exercise, their rights under the act. The same remedies and procedures for violations of Section 103 apply to claims of retaliation or coercion.
Examples of Reasonable Accommodations
The act requires the Equal Employment Opportunity Commission (EEOC) to provide examples of reasonable accommodations that could be offered by employers with respect to the law. These could include:
- Providing additional restroom breaks
- Reducing lifting requirements
- Providing leave for an employee who does not qualify for leave under the Family and Medical Leave Act (FMLA)
- Providing different office equipment (e.g., providing a stool for an employee who typically is required to stand)
- Light duty, or help with manual labor and lifting
- Temporary transfer to a less physically demanding or safer position
- Changing a uniform or dress code, like allowing the wearing of maternity pants
Examples of Undue Hardship on Employers
Undue hardship is based on factors like the cost of accommodation and the employer’s financial resources. Examples of potential undue hardship could include:
- Cost for a small business to temporarily transfer a worker to a light-duty position
- Situation in which accommodation diminishes efficiency in other jobs or infringes on other employees’ job rights or benefits
- An accommodation that impairs workplace safety
- An accommodation that causes other workers to carry the accommodated employee’s share of hazardous or burdensome work
- When a proposed accommodation conflicts with another law
What legal remedies are available under the Pregnant Workers Fairness Act?
A court may award lost pay, interest, compensatory damages, punitive damages, costs, reasonable attorneys’ fees, and experts’ fees to the extent that such relief is available under the law.
Can I be required to take unpaid leave while I am pregnant?
Under the Pregnant Workers Fairness Act, which becomes effective on June 27, 2023, you may not be required to take unpaid (or paid) leave if another reasonable accommodation is available.
What is an example of an undue hardship on an employer under the Pregnant Workers Fairness Act?
Undue hardship could be an accommodation requiring the employer to temporarily move a warehouse worker to light duty when there isn’t sufficient work to justify the cost.
The Bottom Line
The purpose of the Pregnant Workers Fairness Act is to protect previously unprotected pregnant workers. The reason: Pregnancy is not considered a disability under the Americans with Disabilities Act (ADA). It addresses the temporary nature of pregnancy and the need to provide reasonable accommodations to pregnant workers on a temporary basis.
The Pregnant Workers Fairness Act provides legal remedies for qualified workers impacted by violations of the law. It also ensures employers are not adversely financially affected as a result of providing accommodations to workers. The key to achieving balance in the application of the new law is the requirement that both worker and employer follow an interactive process. This includes good-faith discussions to reach a reasonable accommodation that serves both parties fairly.