The Pregnant Workers Fairness Act (PWFA) is now in effect, as of June 27, 2023. The PWFA, which we discussed in a previous alert when President Biden signed it into law, requires employers to provide employees “reasonable” accommodations related to pregnancy unless they would present an “undue hardship” for the employer. The PWFA applies to employers with at least 15 employees – regardless of whether those employees are full-time, part-time, temporary, or seasonal employees as well as people applying for jobs.
Specifically, the PWFA guarantees employees the affirmative right to receive reasonable accommodations for known limitations stemming from pregnancy, childbirth, and related medical conditions unless the requested accommodations would pose an undue hardship to the employer (similar to the familiar process in place for workers with disabilities). Some examples of reasonable accommodations may include:
- Light duty, or help with manual labor and lifting
- Temporary transfer to a less physically demanding or safer position
- Additional, longer, or more flexible breaks to drink water, eat, rest, or use the bathroom
- Changing food or drink policies to allow a worker to have a water bottle or food
- Changing equipment, devices, or workstation, such as providing a stool to sit on or adding a lock to a clean meeting room to turn it into a temporary lactation space
- Making existing facilities easier to use, such as relocating a workstation closer to the restroom
- Changing a uniform or dress code, like allowing wearing maternity pants
- Changing a work schedule, like having shorter work hours or a later start time to accommodate morning sickness
- Breaks, private space (not in a bathroom), and other accommodations for lactation needs
- Flexible scheduling for prenatal or postnatal appointments
- Time off for bedrest, recovery from childbirth, etc.
In short, employees have a right to reasonable accommodations as long as it would not be significantly difficult or expensive – an undue hardship – for their employer to provide. Importantly, a pregnant or postpartum employee does not need to have a pregnancy-related disability in order to receive an accommodation. The employer must also promptly engage in the “interactive process” (in person, by phone, over email, etc.) to discuss the employee’s needs and reasonable accommodations that could meet those needs. Moreover, the employer cannot force an employee to accept an accommodation that the employee does not want or need, or force an employee to take paid or unpaid leave.
In light of the PWFA going into effect today, employers should immediately take certain affirmative steps if they have not already done so, including, but not limited to, the following:
- Review and update accommodation policies to ensure compliance with the PWFA
- Adequately train managers and human resources representatives regarding the requirements of the PWFA and how to handle accommodation requests
- Update your workplace posters regarding employee rights – the U.S. Department of Labor and the Equal Employment Opportunity Commission provide free copies of their recently updated posters on their websites, available here and here
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Weston Hurd LLP attorneys regularly assist employers in all aspects of labor and employment law, including wage compliance, classification of exempt and non-exempt employees, determining proper overtime treatment and compensation, and – of course – compliance with the PFWA. For further information, please contact Russell T. Rendall (rrendall@westonhurd.com), Sara Ravas Cooper (scooper@westonhurd.com) or any of the labor and employment attorneys at Weston Hurd LLP.
