This year marks the 30th anniversary of the federal Family and Medical Leave Act (FMLA), which includes a right to up to 12 weeks of unpaid leave for the birth, placement for adoption or bonding with a child for employees of larger employers. While many employers may already be adept at compliance with the FMLA or its more expansive state or local counterparts, the new Pregnant Workers Fairness Act (PWFA) expands employer obligations even further with regard to pregnant employees and employment applicants.
Who Is Covered by the PWFA?
The PWFA applies to all private and public sector employers with at least 15 employees, as well as to Congress, federal agencies, employment agencies and labor organizations.
The PWFA protects an employee or employment applicant if they have a known limitation related to pregnancy, childbirth or a related medical condition. The PWFA applies regardless of the employee’s length of service.
What Does the PWFA Require?
The PWFA requires covered employers to provide “reasonable accommodations” for known limitations related to pregnancy, childbirth or related medical conditions unless the accommodation will cause the employer an undue hardship. The PWFA does not replace any federal, state or local laws that are more protective of workers.
Employers may not require acceptance of an accommodation without discussion or require the use of leave when another reasonable accommodation is available that allows for continued work. Employers may not deny employment opportunities due to a need for accommodation. Retaliation for engaging in protected activity under the PWFA is also prohibited.
The House Committee on Education and Labor offered several examples of potential reasonable accommodations under the PWFA such as flexible hour arrangements, additional break time, closer parking spots, relocation to be closer to restrooms and water sources, flexible seating arrangements, relief from lifting and other physical duties and other job modifications.
A leave of absence is also a potential reasonable accommodation. However, the PWFA prohibits requiring an employee to take leave if another reasonable accommodation is available to allow the employee to continue to work. According to the PWFA, an employer’s analysis of “reasonable accommodation” and “undue hardship” should be the same as its analysis under the Americans with Disabilities Act (ADA).
How Does the PWFA Expand the Law?
The PWFA provides broader protection to pregnant workers than other federal laws. The ADA requires employers to accommodate medical complications from pregnancy, but only if they rise to the level of a “disability” under the ADA. The Pregnancy Discrimination Act prohibits pregnancy-based discrimination, but it only requires reasonable accommodation of pregnant employees to the extent the employer provides similar accommodations to nonpregnant employees with similar limitations on their ability to work. Leave laws such as the FMLA typically require a period of prior employment before eligibility and rarely apply to smaller employers.
Employer Compliance Steps
- Update Existing Policies and Posters. Review and update existing accommodation and discrimination policies to confirm they incorporate the requirements of the PWFA. Update workplace posters to reflect the most recent “Know Your Rights” and Minimum Wage
- Educate Managers. Managers often are the first to receive an accommodation request from a pregnant employee. Remind managers of internal procedures for responding to or escalating such requests. Determine whether additional educational resources are needed.
- Consider Creative Accommodations. Various accommodations may be available to meet the needs of the pregnant employee and the employer. Listen to the employee’s request and ask appropriate questions about possible accommodations. Remember not to assume that leave is the primary or preferred option.
- Remember Post-Childbirth Legal Protections. Obligations under the PWFA do not end at childbirth. For example, an employee with a post-birth complication may also be eligible for accommodation under the PWFA. Additionally, lactation laws afford employees break time (potentially paid under certain circumstances) and a private space to express milk at work, with varying requirements depending on employer size and applicable federal and state law.
- Seek Appropriate Human Resources or Legal Guidance. Regulatory guidance regarding the PWFA is expected to be published in the future. Additionally, a network of federal, state and local laws beyond the PWFA may be implicated. Employers are advised to consult with appropriate human resources or legal professionals before denying an accommodation request.
Meet the Authors:
Nicole Stover is a strategic business partner to corporate and non-profit clients in all areas of employment law, including mergers and acquisitions, discrimination and harassment, competition and trade secrets, and compensation and benefits.
Melissa Perry is an experienced litigator and strategic problem solver who represents corporate and institutional clients in all types of litigation, including employment and labor, complex commercial, government investigations, and appellate matters.