by Casey Seaman, Staff Writer
Photo courtesy of unsplash.com
Women account for nearly 60 percent of the workforce, most of whom work during their pregnancies.[1] For years, pregnant workers, especially women in low wage and physically demanding jobs, were punished for being pregnant.[2] Employers routinely denied pregnant workers temporary job accommodations needed to have healthy pregnancies.[3] Further, pregnant workers continued to be fired, forced to quit, or put on unpaid leave when they asked their employers for temporary modifications of their job duties to keep working.[4]
To combat the discriminatory treatment of pregnant workers, Congress recently passed the Pregnant Workers Fairness Act (“PWFA”).[5] The PWFA passed in the house in May 2021 despite being introduced annually since 2011.[6]Prior to the passage of the PWFA, federal law already required employers to provide reasonable break time and a clean space to breastfeed for nursing employees.[7] However, millions of workers, many of them salaried, were excluded from that law when it was passed as part of the Affordable Care Act in 2010.[8] The recent passage of the PWFA helps to bridge the gap of those previously excluded under the federal law by codifying pregnant worker protections not explicitly granted in the ADA or Pregnancy Discrimination Act.[9] Further, the PWFA has garnered significant bipartisan support as well as support from workers’ advocates, the ACLU, A Better Balance, and the National Education Association.[10]
The PWFA prohibits employers from discriminating against a job candidate or employee because of their need for a pregnancy related accommodation.[11] The PWFA also places a significant emphasis on the concept of “reasonable accommodations” and requires most employers to grant temporary and reasonable accommodations for pregnant workers.[12] Under the act, employers with 15 or more employees are required to provide these arrangements and accommodations for job applicants and employees with conditions related to pregnancy and childbirth.[13] Examples of reasonable accommodations include, permitting an individual to sit or stand more or less frequently, reducing or revising schedules, allowing more frequent breaks, moving a workstation closer to a rest room, providing assistance with physically demanding tasks, and arranging for light duty or temporary transfer to a different position.[14] Thus, reasonable accommodations for pregnant workers will likely look the same as those for employees with other protected conditions.[15] However, requests based on pregnancy are likely to be temporary and may be easier for employers to maintain.8 Further, remedies under Title VII will also be applicable to the PWFA including a private right of action against employers that violate the act which may result in damages.[16]
The PWFA will become effective on June 27, 2023.[17] The U.S. Equal Employment Opportunity Commission is responsible for enforcing the PWFA and will have two years to issue PWFA specific regulations.[18] In the meantime, employers are encouraged to review and amend their policies to ensure that pregnancy, childbirth, and related medical conditions can be considered limitations that employer’s must reasonably accommodate.11 Further, employers should train managers and human resources professionals to be sensitive and aware of the changes imposed by the PWFA, especially for how to engage in the interactive process with qualified employees.[19]
[1] https://www.aclu.org/press-releases/aclu-applauds-senate-passage-pregnant-workers-fairness-act-and-pump-nursing-mothers
[2] Id.
[3] Id.
[4] Id.
[5] https://news.bloomberglaw.com/daily-labor-report/accommodating-pregnant-workers-new-workplace-law-explained
[6] Id.
[7] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/senate-pregnant-worker-protections.aspx
[8] https://news.bloomberglaw.com/daily-labor-report/accommodating-pregnant-workers-new-workplace-law-explained
[9] https://www.jdsupra.com/legalnews/giving-birth-to-federalized-pregnancy-7935506/
[10] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/senate-pregnant-worker-protections.aspx
[11] https://news.bloomberglaw.com/daily-labor-report/accommodating-pregnant-workers-new-workplace-law-explained
[12] Id.
[13] Id.
[14] https://www.jdsupra.com/legalnews/giving-birth-to-federalized-pregnancy-7935506/
[15] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/senate-pregnant-worker-protections.aspx
[16] https://www.jdsupra.com/legalnews/giving-birth-to-federalized-pregnancy-7935506/
[17] https://www.jacksonlewis.com/publication/complying-new-federal-pregnant-workers-fairness-act-pump-nursing-mothers-act
[18] https://www.jdsupra.com/legalnews/giving-birth-to-federalized-pregnancy-7935506/
[19] https://news.bloomberglaw.com/daily-labor-report/accommodating-pregnant-workers-new-workplace-law-explained
