The Pregnant Worker Fairness Act and What Employers May Already Know

In December 2022, Congress passed legislation to protect pregnant workers and new moms. The language in the Pregnant Workers Fairness Act (PWFA) is like the Americans with Disabilities Act (ADA), but instead of protecting disabled individuals, the PWFA prohibits discrimination against pregnant employees or applicants. This includes discrimination based on pregnancy, childbirth, or related medical conditions. The law also requires employers to provide reasonable accommodations to pregnant workers or those affected by pregnancy-related medical conditions, unless the accommodations impose an undue hardship on the employer.

How PWFA works

Let’s sketch out exactly how the PWFA works. Since lower back pain has been considered by many physicians to be a pregnancy-related medical condition, let’s apply the law to Jane Lumbago, a hypothetical pregnant woman who suffers from severe back pain. Early in her pregnancy, she begins to experience terrible back spasms. Her doctor offers her a letter explaining that the pain is due to her pregnancy and she cannot stand for long periods. Because her job requires many hours of standing, she hands the letter to her Human Resources Director and requests a chair to sit in during work hours. What should her employer do?

First, the PWFA prohibits Jane’s employer from refusing to make a reasonable accommodation related to her pregnancy, childbirth, or pregnancy-related medical conditions. So, Jane’s request, which seems reasonable, cannot be denied unless providing a chair imposes an undue hardship on the operation of the business. But the PWFA also requires Jane’s employer to engage in an interactive process with her to determine what accommodations work. So, it would be illegal for Jane’s employer to completely ignore her request for a chair, or to flat out refuse it and leave the issue alone. Instead, even if providing a chair to Jane would be an undue hardship, the PWFA requires Jane’s employer to have meaningful discussions with Jane to figure out how she can be accommodated. If requested accommodations mean that the employee cannot do the job, they will not be reasonable.

Additionally, the PWFA prohibits employers from compelling pregnant employees to take leave, regardless of whether the leave is paid. So, Jane’s employer cannot respond to her request for a chair by only offering her paid leave. Moreover, the PWFA prohibits Jane’s employer from taking adverse action against her because she requested a chair to sit in during work hours. So, if her employer granted Jane’s request for a chair, the employer cannot turn around and cut her hours to ensure her time spent in the chair is reduced.¹

Finally, the PWFA also prohibits employers from denying employment opportunities based on a request for a reasonable accommodation related to pregnancy. So, if Jane is applying for a job and during her interview, she tells her potential employer that she will need a chair due to her pregnancy-related back pain, the employer may not deny her application because of her request.

The PWFA, the ADA, and Current Employer Practices

The PWFA does not only apply to pregnancy-related medical conditions. It also prohibits discrimination based on pregnancy itself and also on the needs of new mothers, like childbirth leave and pumping or expressing milk.

But one reason we used Jane Lumbago as an example is to illustrate how the PWFA is similar to the Americans with Disabilities Act (ADA). Both prohibit employers from discriminating against employees, and require employers to provide reasonable accommodations and to interact with employees to determine which accommodations are best.

But it is important for employers to also know that, although pregnancy itself is not considered a “disability” under the ADA, some medical conditions related to pregnancy likely do qualify as disabilities. Thus, because federal and state laws already prohibit discrimination based on pregnancy-related medical conditions branded as “disabilities,” there is a good chance compliant employers already have sufficient processes in place in employee handbooks to accommodate pregnancy-related medical conditions. Employers should reexamine their ADA and state disability accommodation processes and use these to create similar processes for pregnant employees.

Employers should also be aware that the similarities in the ADA and PWFA means that in cases involving pregnancy-related medical conditions, if an employer violates the PWFA, it may also be violating the ADA’s prohibition on discrimination based on disabilities.

To Whom Does the PWFA Apply?

The PWFA applies only to employers who are “covered entities.” This generally means employers who have 15 or more employees.

At this time, it is unclear how the law will be applied to religious institutions. The PWFA does not have a clear religious exemption. Thus, under a strict reading of the PWFA, whether the law applies to churches and religious institutions only depends on whether the religious institution has 15 or more employees, not the religious nature of the organization itself. This was a big concern for pro-life legislators, because abortion is a pregnancy-related procedure. Without a clear religious exemption, a religious employer who refuses to grant time off to an employee to have an abortion could be violating the PWFA.

Terminating Pregnant Workers

Employers should be aware that, although it is illegal to terminate an employee because of their disability, there are situations in which it is permissible to terminate a disabled employee without violating the ADA. First, an employer may terminate a disabled person if the termination is completely unrelated to the disability (such as a performance issue), if a disabled employee cannot meet the requirements of the job, or if the employee’s disability creates a situation in which the employee poses a direct threat to health and safety in the workplace.²

It should be stressed that pregnancy is not a disability. Thus, the lawful reasons for terminating a disabled employee do not apply to pregnant workers. But with the PWFA, there is some overlap when it comes to disabilities and pregnancy-related medical conditions. Therefore, employers should be very careful when terminating a pregnant employee, especially if the employee suffers from a pregnancy-related medical condition, because although the employer may not violate the ADA, it may still be violating the PWFA. However, if a pregnant employee is not performing adequately, it still should be possible to terminate her. It would be wise to consult your legal counsel for a careful analysis.

Conclusion

While pregnancy can be a difficult time for both employer and employee, it is also an exciting time of welcoming a new life into the world. Supporting an expectant or new mother through this time can help her have a meaningful career and also help to create a pleasant and joyful workplace.

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¹ If Jane requests or agrees to paid leave or cut hours, then her employer is then free to accommodate her with these options so long as the employer and Jane have had the discussion and they agree.

² Employers and the ADA: Myths and Facts, U.S. Department of Labor. Found at: https://www.dol.gov/agencies/odep/publications/fact-sheets/americans-with-disabilities-act.

Featured Image by Rebecca Sidebotham.