What to Know: Pregnant Workers Fairness Act

Carissa Davis

Through the most recent government funding bill, the Pregnant Workers Fairness Act (“PWFA”) was signed into law and is set to take effect June 27, 2023.  The PWFA will soon require employers (with 15 or more employees) to grant reasonable accommodations for qualified individuals with known limitations resulting from “physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions…whether or not such condition meets the definition of disability specified in…. the Americans with Disabilities Act (“ADA”)…”

The PWFA’s definition of “reasonable accommodation” mirrors that under the ADA and extends to qualified employees (and applicants). However, unlike the ADA, an individual will also be considered qualified if “any inability to perform essential functions is for a temporary period[,] the essential function could be performed in the near future[,] and the inability to perform the essential function can be reasonably accommodated.” The law expressly provides that paid or unpaid leave cannot be required if some other reasonable accommodation exists, and an employer cannot require a qualified employee to accept an accommodation other than those “reasonable accommodations arrived at through the interactive process[.]” As with the ADA, there is no need for an accommodation if such accommodation presents an undue hardship.

The PWFA goes above and beyond the existing federal Pregnancy Discrimination Act (“PDA”), which merely prohibits employers from discriminating against individuals because of pregnancy or related conditions. While the PDA does not itself require employers to grant reasonable accommodations, the United States Supreme Court held in Young v. United Parcel Services Inc., 575 U.S. 206 (2015) that an employer may run afoul of the law if it refuses to grant a reasonable accommodation to a pregnant worker when the same accommodation would be granted to some other disabled employee similar in their ability/inability to work. While the caselaw is not uniform, some courts have interpreted Young to require employers to provide certain reasonable accommodations to pregnant workers. The PWFA resolves these inconsistencies by imposing the obligation regardless of what the PDA may, or may not, require, and employers across the country may need to take action to come into compliance.

To start, employers should consult with experienced employment counsel to review existing policies and handbooks and determine whether revisions need to be made. While the law takes effect in June, policy and procedure revisions take time, and employers will want to be sure that human resources and management personnel are well versed in the new requirements.  If you have questions about the PWFA or any other L&E topics, please contact your Sherman & Howard attorney.