The Pregnant Workers Fairness Act (“PWFA”) will take effect on June 27, 2023. The law seeks to close long-standing gaps in the protections afforded to pregnant workers under other federal laws. The rights created by the statute are especially important for employees who live in jurisdictions without state or local laws requiring employers to make reasonable accommodations for pregnant persons.
Although New York employers have been required to provide reasonable accommodations for “pregnancy-related conditions” under state law since 2015, it is nonetheless important for New York businesses to understand that employees will soon have a federal right of action for violations of the PWFA.
Pre-PWFA Federal Laws Concerning Pregnancy Discrimination
In 1978, Congress passed the Pregnancy Discrimination Act, which amended Title VII of the Civil Rights Act of 1964 (“PDA”). The law made it illegal for employers to make employment decisions based on an employee’s past or current pregnancy, potential pregnancy, or medical condition relating to pregnancy. Though groundbreaking at the time, the PDA stopped short of requiring employers to make reasonable accommodations for pregnant workers to enable them to do their jobs.
In the years since, the PDA has been interpreted as requiring employers to treat workers affected by pregnancy, childbirth or related medical conditions the same as other workers who are similar in their ability or inability to work. See Young v. U.S. Parcel Service, 575 U.S. 206 (2015). Thus, to the extent that an employer makes accommodations for other employees with a similar ability to work (or not), it must treat pregnant workers in kind. This provided pregnant workers with a narrow path for seeking accommodations.
That path grew slightly wider with the enactment of the Americans with Disabilities Act (“ADA”) in 1990. The ADA requires an employer to provide a reasonable accommodation for an employee with a disability if doing so would not cause an undue hardship. While pregnancy is not a disability under the ADA, some conditions related to pregnancy may be, such as gestational diabetes or preeclampsia.
The PWFA
The PWFA will require covered employers (i.e., private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations) to provide reasonable accommodations to employees who have known limitations related to pregnancy, childbirth or related medical conditions to enable them to perform their jobs, provided such accommodations do not cause the employer undue hardship. The employee’s limitations need not rise to the level of a disability, as is the case under the ADA, and an employee need not show that the employer provides accommodations to similarly situated employees, as is the case under the PDA.
According to the Equal Employment Opportunity Commission (“EEOC”), the House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations including the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. The EEOC is expected to issue regulations addressing matters such as possible the types of accommodations employers should consider providing.
The PWFA also makes it unlawful for covered employers to force an accommodation on an employee without engaging in the interactive process, deny job opportunities to an employee based on their need for an accommodation, require an employee to take leave when a different accommodation would allow them to continue working, or retaliate against an employee who opposes violations of the PWFA.
Does the PWFA Change Things for New Yorkers?
In 2015, the New York State Human Rights Law (“NYSHRL”) was amended to require employers to make reasonable accommodations for employers with “pregnancy-related conditions,” which include all needs and restrictions related to an employee’s pregnancy. These conditions need not rise to the level of a disability and can be as simple as an employee’s increased need for water or extra bathroom breaks.
Nonetheless, New York employers should be aware that the manner in which pregnant employees may assert their rights will change with the enactment of the PWFA. Employees’ only avenue for redress under the NYSHRL is to bring claims in state court or to file a charge with the New York State Division of Human Rights. Previously, review of a NYSHRL claim by the EEOC or a federal court was available only if the employee had other viable federal claims or if the employer and employee were residents of different states. Now, charges of discrimination under the PWFA can be filed with the EEOC and, if not resolved, can be asserted in a federal lawsuit.
Employers should also consider updating their reasonable accommodation policies to specifically reference pregnant workers and their rights under the PWFA, and should ensure that managers and supervisors are aware of their obligations under the law.
If you have questions about pregnancy discrimination or reasonable accommodations for pregnant workers, please contact Jessica M. Baquet at (516) 663-6506 or jbaquet@rmfpc.com.