Pregnant Workers Fairness Act Expected to Become Federal Law

The Pregnant Workers Fairness Act (PWFA) has been introduced in every Congress since 2012. Last session, PWFA passed the House but was never considered by the Senate. This time the PWFA is expected to become law. This post discusses the details of the Act, examines other similar state law, and considers what employers ought to do now to prepare for the new requirements.

PWFA Requirements

Under the PWFA, private employers with at least 15 employees and all public sector employers must make reasonable accommodations for pregnant employees and job applicants. The Act protects employees with known limitations surrounding pregnancy, childbirth, or related medical conditions. Employers, however, are not required to accommodate pregnant workers if it would impose an undue hardship on the employer's business.

The Act prohibits employers from retaliating against employees for requesting a reasonable accommodation, forcing an employee to take leave if a reasonable accommodation is available, and denying employment opportunities.

Under the PWFA, the Equal Employment Opportunity Commission (EEOC) would have the authority to issues rules regarding implementation of the law. The EEOC would provide a list of accommodations that should be provided unless they pose an undue hardship on the employer.

According to the PWFA, workers who claim pregnancy discrimination and are denied reasonable accommodation or employment opportunities have the same legal rights and remedies as those under Title VII of the Civil Rights Act of 1964. Remedies may include lost pay, compensatory damages, and reasonable attorneys' fees.

Similar State Law

Thirty states across the nation already have similar state laws on the books.

Colorado passed a state Pregnant Workers Fairness Act in 2016. The Act amended the Colorado Anti-Discrimination Act and required employers to accommodate medical conditions or limitations related to pregnancy that may not qualify as a disability under the Americans with Disabilities Act.

The Colorado state law applies to all employers with at least one employee. Under state law, employers must give reasonable accommodations to job applicants and employees for conditions related to pregnancy or recovery from childbirth unless the accommodations would impose an undue hardship on the employer.

Possible reasonable accommodations, under Colorado law, include more break periods, more restroom, food, or water breaks, alternative seating arrangements at work, assistance with manual labor, transfer to a less hazardous or strenuous position and return to the previous position after pregnancy, lighter duty, or even a modified work schedule.

Under Colorado law, an employer can request a doctor's note stating the necessity of the accommodation. A worker, however, cannot be forced to take an accommodation that was not requested or is unnecessary.

Additionally, employers must post notice to all new employees of these rights and provide written notice to all employees.

Other state laws may be very similar, and like Colorado's law, may apply to smaller businesses.

Preparing for Pregnancy Accommodations

Employers should begin preparing for a federal pregnancy accommodation law now, if they have not already, including these possible actions:

• Update accommodation policies or create a separate pregnancy accommodation policy for the employee handbook, including information on how to request pregnancy-related accommodations.
• Design procedures to consider and implement requests for pregnancy accommodations.
• Ensure job descriptions are accurate and complete as to the essential functions of the job.
• Train HR personnel and managers on the accommodation requirement and anti-retaliation provisions.
• Establish a periodic review of accommodation procedures to ensure compliance.

Religious employers should also be mindful to comply with the proposed federal requirements as they may very well apply to them despite the ministerial and religious exceptions.

Conclusion

Pregnancy accommodations in the workplace have broad bipartisan support. Wise employers believe that treating pregnant women well also contributes to having a healthy and functional workplace. If they do not already have these policies, employers should start preparing, as the Act is expected to pass. Employers should also evaluate whether state law is already applicable to their organization and what, if any, additional requirements exist. For specific employment law questions related to pregnancy accommodation, employers should reach out to experienced legal counsel.

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Featured ImagebyRebecca Sidebotham.