After more than a decade’s worth of attempts, Congress has finally passed the Pregnant Workers Fairness Act (PWFA). The PWFA broke through the logjam as part of the must-pass $1.7 trillion government funding bill shepherded through Congress at the end of December 2022.

Once the PWFA takes effect on June 27, 2023, employers with at least 15 employees will be required to treat qualified employees with pregnancy-related restrictions precisely as they treat qualified employees with disabilities, providing reasonable accommodations unless doing so would pose an undue hardship on the operation of the business.

PWFA BACKGROUND

Since the passage of the Pregnancy Discrimination Act (PDA) in 1978, it has been unlawful for employers to discriminate against employees on the basis of “pregnancy, childbirth, or related medical conditions[.]” 42 U.S.C. § 2000e(k). The PDA also requires that “women affected by pregnancy, childbirth, or related medical conditions…be treated the same for all employment-related purposes...as other persons not so affected but similar in their ability or inability to work[.]”

This same treatment requirement has long generated questions about whether the PDA effectively deemed employees with temporary pregnancy-related medical conditions to have the same status as employees with disabilities, whom employers must reasonably accommodate under the ADA, or employees injured on the job, whom employers have every incentive to accommodate.

Federal appeals courts rendered various interpretations of the PDA until 2015, when the Supreme Court decided Young v. United Parcel Service, Inc. Young established that, if a PDA plaintiff shows the employer accommodated others “similar in their ability or inability to work,” the employer is required to identify a legitimate, non-discriminatory reason for denying the pregnant worker accommodation. If the employer does so, the employee must then prove that the employer’s reason was pretextual. The Court noted that a PDA plaintiff will generally prevail with evidence that the employer accommodated a significant number of non-pregnant employees, while failing to accommodate a large percentage of pregnant employees.

While Young was seen as a major victory for pregnant workers, the decision left room for employers to defend decisions to accommodate certain categories of workers—e.g., those with workers’ compensation injuries—while not accommodating pregnant employees with similar restrictions on their ability to work.

ENTER THE PREGNANT WORKERS FAIRNESS ACT

The newly passed PWFA expressly requires covered employers to provide reasonable accommodation to the known limitations related to a qualified employee’s pregnancy, childbirth, or related medical conditions. The PWFA’s protections mirror those set forth in the ADA, adopting the same meaning of “reasonable accommodation” and “undue hardship,” and requiring an interactive process. Like the ADA, pregnant employees are not entitled to the accommodation of their choice; however, the PWFA makes clear that an employer cannot require an employee to take a leave of absence (paid or unpaid) if another effective and reasonable accommodation exists that would not create undue hardship.

THE BOTTOM LINE FOR EMPLOYERS

Whether the PWFA represents a change from the status quo will vary by state. Since 2000, when Congress declined to pass additional protections for pregnant employees, more than 30 states have passed protections for that exceed the federal requirements under the PDA. In 2018, Massachusetts amended M.G.L. c. 151B, §4 to expressly require reasonable accommodation of employees’ pregnancy or pregnancy-related conditions unless the accommodation would impose an undue hardship on the employer.

Similarly, Maine amended the Maine Human Rights Act (5 M.R.S. §4572-A) in 2019, codifying essentially the same protections set forth in the PWFA. In contrast, employers in states without expanded state-level protections for pregnant workers will need to adjust their policies and their approach to accommodating temporary restrictions connected to pregnancy or childbirth.

The types of accommodations employers might be required to provide in connection with pregnancy or childbirth are varied, depending on the underlying condition or restriction. For example, an employee on bed rest may require remote work; a pregnant worker with carpal tunnel syndrome may require a dictation program or note taker; an employee with edema may need a chair, more frequent rest breaks, or an exception from the footwear policy; and a pregnant worker with hypertension or preeclampsia may need to limit their physical activity.

As under the ADA, a request for pregnancy-related accommodation under the PWFA should prompt an individualized analysis; and, as under the ADA, what is a necessary, effective, and reasonable accommodation will depend on the facts and circumstances, including but not limited to the employee’s needs, the nature of the business, and the employer’s resources.