HR REPORT: The Federal Pregnant Workers Fairness Act

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA’s legal services or your municipal attorney.

On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA).  The new law requires covered employers to provide reasonable accommodations to qualified employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions.  Like the Americans with Disabilities Act (ADA), the law excuses employers from providing reasonable accommodations if they would cause the employer an undue hardship.  Consistent with Title VII of the Civil Rights Act of 1964, the PWFA applies all employers, public or private, who employ at least 15 employees.  The PWFA goes into effect on June 27, 2023.

Pregnant employees have long been protected against discrimination in the workplace under the Pregnancy Discrimination Act of 1978 and the New Hampshire Law Against Discrimination (RSA 354-A:7, VI).  Under these laws, pregnant employees, as well as individual affected by childbirth and related medical conditions, are entitled to be treated the same as their coworkers who are not affected by pregnancy, childbirth, or related medical conditions but who have a similar ability or inability to work.  As discussed in the HR Report in Town and City’s January/February 2023 Issue, https://www.nhmunicipal.org/town-city-article/hr-report-employment-law-hotline-maternity-leave, eligible pregnant employees may take leave under the FMLA up to a maximum of 12 weeks.  In addition, the employee may take protected leave concurrently (or if not FMLA eligible, exclusively), under New Hampshire’s maternity leave statute for the “period of temporary physical disability resulting from pregnancy, childbirth, and related medical conditions.”

Pregnancy is not considered a disability under the ADA or state discrimination law.  However, pregnancy related conditions (e.g. depression, cardiomyopathy, etc.) can constitute disabilities.  In those circumstances, pregnant employees, and employees affected by childbirth and related medical conditions, have been able to use the ADA to obtain workplace reasonable accommodations.  With the adoption of the PWFA the reasonable accommodation obligation, as well as the obligation to engage in an interactive process with an affected individuals, is available to any qualified employee or applicant with “known limitations” related to pregnancy, childbirth, and related medical condition.  The PWFA prohibits employers from requiring employees with pregnancy-related health conditions to take leave (either paid or unpaid) if another reasonable accommodation could be provided, and the law also prohibits retaliation against employees who request reasonable accommodations.

Much of the PWFA will likely be interpreted consistent with the ADA.  However, the concept of “known limitation” under the PWFA is broader than the definition of “disability” under the ADA. Essentially, a pregnant employee need not be disabled to seek an accommodation.   , The PWFA also expands the definition of “qualified employee.”  Under the ADA, an employee is considered “qualified” if they are able to perform the essential functions of their position with or without a reasonable accommodation.  The PWFA adopts this same definition but with the explicit exception that an individual will still be considered “qualified” if they are unable to perform an essential function for a temporary period, the essential function can be performed in the near future, and the inability can be reasonably accommodated.

The Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing the PWFA, has been instructed to develop and adopt regulations implementing the law, but has not yet done so.  In the meantime, the EEOC has posted a “What You Should Know” question and answer set on its website.  In the Q&A, the EEOC indicates that the following could constitute “reasonable accommodations” under the PWFA: the ability to receive closer parking; flexible work hours; appropriately sized uniforms and safety apparel; additional break time; leave or time off to recover from childbirth; and excusal from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.  The EEOC has indicated that it will begin accepting charges under the statute on that date related to workplace occurrences occurring on or after that date

In advance of the June 27, 2023 effective date, employers would be prudent to review and update their policies and handbook to provide employees with guidance for requesting reasonable accommodations for known limitations related to pregnancy, childbirth, and related medical conditions.  Employers should train supervisors regarding the change in the law and what the supervisor should do if an employee approaches them regarding a known limitation related to pregnancy.  Finally, as employers currently do when employees raise disability-related concerns and barriers in the workplace, employers should be prepared to engage in an interactive process with affected employees regarding the impact of a known limitation on their ability to do their job and potential reasonable accommodations that would enable them to perform their essential functions (or do so in the near future).

Employers with questions about discrimination, reasonable accommodations, or other employment laws or requirements are encouraged to contact a member of Drummond Woodsum’s Labor and Employment team for assistance.