Originally posted: [Insert date or delete if n/a]
On June 27, 2023, the federal Pregnant Workers Fairness Act (PWFA) goes into effect—requiring employers to make reasonable accommodations for employees with known limitations due to pregnancy, childbirth, or related medical conditions. President Biden signed the act into law in December 2022. Now, the Equal Employment Opportunity Commission (EEOC) is tasked with implementing and enforcing the program.
What is the Pregnant Workers Fairness Act?
The PWFA creates more protections for currently and previously pregnant workers, expanding upon existing programs and rights offered by Title VII, the Americans with Disabilities Act (ADA), the PUMP Act, and the Family and Medical Leave Act.
In summary, the PWFA requires employers to provide “reasonable accommodations” to the “known limitations” of an employee related to pregnancy, childbirth, or related medical conditions. Employers are also prohibited from discriminating or retaliating against employees requesting accommodations for conditions covered by the PWFA. These requirements also apply to job applicants.
Who must comply with the PWFA?
Employers with 15 or more employees must implement and comply with the PWFA’s requirements. This includes private and public sectors, Congress, federal agencies, employment agencies, and labor organizations.
Exceptions are allowed if providing an accommodation would cause an undue hardship (significant difficulty or expense) for the employer.
What are reasonable accommodations?
Reasonable accommodations are changes to the work environment or how things are done. Examples of reasonable accommodations under the PWFA may include:
- The ability to sit or drink water.
- Closer parking.
- A more flexible schedule.
- Appropriately sized safety apparel.
- Eliminating activities that are not safe for pregnancy.
What are known limitations?
Known limitations are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Known limitations do not have to meet the ADA’s definition of a disability and, therefore, broaden the spectrum of what employers must accommodate.
For example, medical conditions may include lactation, miscarriage and pregnancy loss, and fertility treatment. Known limitations could include postpartum depression, preeclampsia, and gestational diabetes.
How should employers respond to an accommodation request?
The PWFA requires employers to engage in an interactive process with the employee to identify suitable accommodations. Employers should already have policies and procedures in place to receive, review, and implement reasonable accommodations for disabilities and Title VII claims, but they should update and apply these procedures to include the new PWFA requirements.
If an employee requests accommodation for a condition covered by the PWFA, the act strictly prohibits employers from:
- Requiring the employee to take leave, paid or unpaid, if other reasonable accommodations are available.
- Denying employment opportunities.
- Taking adverse actions against the employee.
- Retaliating against the employee.
Preparing for the Pregnant Workers Fairness Act
Although the EEOC plans to issue regulations and additional guidance related to enforcing the PWFA at the end of 2023, the act becomes fully enforceable on June 27, 2023. On this date, workers will have a right to receive reasonable accommodations and can submit claims of alleged violations against employers to the EEOC.
Therefore, employers should begin taking the necessary steps to ensure full compliance with the law before June 27, 2023. Consider these action steps:
- Amend internal policies and procedures.
- Communicate the law and your organization’s procedures to employees.
- Train personnel and design systems to ensure compliance.
- Monitor EEOC communications for relevant updates.
Managing sensitive health information
Employees have to voluntarily disclose personal health information to their employers to obtain accommodations. As you prepare for the PWFA, consider how your organization will handle this confidential information and adhere to federal and state laws.
Currently, the EEOC has no language addressing the privacy and confidentiality of employee information, but there’s a strong likelihood that the EEOC will address the subject in its enforcement regulations.
PWFA & Michigan Law
The PWFA creates legal minimums for protections and requirements throughout the U.S. It does not replace federal, state, or local laws that are more protective of workers. Therefore, states, including Michigan, may establish more stringent programs for workers experiencing pregnancy, childbirth, or related medical conditions. Currently, Michigan does not have more stringent protections; the PWFA will be the applicable standard for Michigan-based employers.
Keep in mind, Governor Whitmer signed legislation in May 2023 prohibiting employers from discriminating against employees who terminate a pregnancy. Preparing for the PWFA may provide an opportune time to ensure your organization complies with the most current version of the Elliott-Larsen Civil Rights Act.
Over the last 10 years, the EEOC has gradually received and pursued more pregnancy-related discrimination claims, showing its commitment to cracking down on such violations. We expect this trend will only increase as the PWFA goes into effect. Employers should focus on compliance to support their current and previously pregnant workers and avoid any penalties associated with violating the law.
About the Author
Spencer Lickteig is an associate attorney at Smith Haughey Rice & Roegge, practicing in the area of health law. He works closely with members of the health care industry to address and offer solutions for their business, regulatory, compliance, and technology issues. Spencer specializes in health care transactional matters, including fraud and abuse compliance, contract reviews, and internal policy drafting and review.
Smith Haughey’s health law and employment law attorneys are ready to help employers comply with the Pregnant Workers Fairness Act, provide counsel regarding accommodation requests, and assist with any complaints related to the PWFA.