New rules for pregnant workers take effect

EEOC Guidance on how employers should implement the law coming by end of year

BY Jim Wilson 28 Jun 2023

The legislation ensuring that employers will provide necessary accommodations for pregnant workers is now in effect.

The Pregnant Workers Fairness Act (PWFA), which takes effect today, is a federal law that requires covered employers with at least 15 employees to provide “reasonable accommodations” to a qualified worker’s known limitations related to pregnancy, childbirth, or related medical conditions – unless the accommodation will cause the employer an “undue hardship,” according to the Equal Employment Opportunity Commission (EEOC).

The EEOC will issue a proposed version of the PWFA regulations so the public can give their input and offer comments before the regulations become final. By the end of this year, the commission is required to publish guidance on how employers should implement the law, including a list of examples of reasonable accommodations, which the public will have a chance to weigh in on, according to an NBC News report.

Some stakeholders reminded employers that they should abide by the new law.

“We’ve said it before: To truly #MakeWorkWork for women, both individuals and organizations need to take action, whether by advocating for broad public policy measures or providing employee benefits,” said Chief, a private network of women in executive leadership, in a LinkedIn post.

“Given the lack of a national paid family and medical leave policy in the United States, pregnant and postpartum employees are in dire need of these protections. With this new legislation, it’s up to employers to implement and enforce them properly.”

PWFA’s accommodation provisions are aimed at filling in gaps left open in the Pregnancy Discrimination Act (“PDA”) of Title VII which generally protects employees from discrimination on the basis of pregnancy, and “employers need to update their workplace notices,” said Mark Fijman, a counsel at law firm Phelps Dunbar, in a separate LinkedIn post.

An estimated 2.8 million workers annually could benefit from the policy change, according to the advocacy organization National Partnership for Women and Families.

In 2021, a nursery worker in the UK who was fired while she was pregnant was awarded £40,000 (approx. US$56,400) in her unfair dismissal complaint against her former employer.

Specifics of PWFA

Employers covered by PWFA include private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies and labor organizations, according to EEOC.

Some possible accommodations for workers covered by the law include:

Being able to sit or drink water
Receiving closer parking
Having flexible hours
Receiving appropriately sized uniforms and safety apparel
Receiving additional break time to use the bathroom, eat, and rest
Taking leave or time off to recover from childbirth
Being excused from strenuous activities and/or exposure to chemicals not safe for pregnancy

Also, covered employers cannot:

Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
Interfere with any individual’s rights under the PWFA.

Recently in Canada, the Federal Public Sector Labour Relations and Employment Board (FPSLREB) dismissed a worker’s claim that her term of employment was not extended because of her disability or pregnancy.