Pregnant Workers Fairness Act – New Protections for Women Workers in New York City
The US Congress adopted the Pregnant Workers Fairness Act (“PWFA”) on December 27, 2022, and the Act went into force on June 27, 2023. On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued a final regulation to carry out the law, which goes into effect on June 18, 2024. The law is designed to guarantee workplace accommodations for workers with limitations related to pregnancy, childbirth, or a related medical condition.
What has changed?
Previously, pregnancy and childbirth were not considered reasons for accommodating associated limitations. Employees were entitled to protection under the Americans with Disabilities Act (“ADA”) only in cases where the worker experienced pregnancy complications and other disabilities. The PWFA prescribes that employers must accommodate limitations caused by pregnancy and childbirth, regardless of whether they are disabilities as defined by the ADA.
This means that if you are suffering from a common pregnancy condition, such as toxicosis or fatigue, your employer must work with you to provide an accommodation to enable you to perform the essential functions of your job while managing your symptoms.
What is PWFA about?
PWFA requires covered employers to reasonably accommodate qualified employees’ limitations related to pregnancy, childbirth, or related medical conditions.
The law applies only to accommodations. Other laws, such as Title VII of the Civil Rights Act and the ADA, prohibit firing, discriminating against, and retaliating against workers because they are pregnant or for asserting their rights. For example, an employer cannot fire a worker only because of her pregnancy. Similarly, an employer cannot fire an employee because she made a good faith complaint about discrimination related to her pregnancy.
PWFA also prohibits employers from denying employment opportunities if such denial is based on the need to make reasonable accommodations for a worker’s pregnancy. It is also unlawful to require a pregnant worker to take leave, whether paid or unpaid, if another reasonable accommodation can be provided.
Who is protected under PWFA?
The law protects qualified employees who have known limitations. Limitations are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
A qualified employee is an employee who, with or without reasonable accommodation, can perform the essential functions of her position. The law covers applicants as well. Therefore, you are a qualified employee if you can perform all essential functions of your current or prospective job.
However, if you can’t perform essential functions of your position, additional consideration of your circumstances is necessary. Under the PWFA, a worker shall still be considered qualified if: (1) the employee’s inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; (3) the inability to perform the essential function can be reasonably accommodated.
Since pregnancy and childbirth are not indefinite in their term, most likely, your limitations on performing essential functions are temporary or can be reasonably accommodated, making you a qualified employee.
What are essential functions?
Essential functions are the fundamental duties of the job. This means that your job cannot be completed without performing these functions. For example, if you are a bus driver, you must be able to operate a bus. If your conditions make you unable to drive, there won’t be any reasonable accommodation available.
However, this issue is often more complicated and requires an in-depth, fact-specific analysis. For instance, if you are an administrative assistant, one of your job duties might be reloading printers with paper. Most likely, this would be a marginal task—not an essential function of your position. If pregnancy makes it difficult for you to bend, you may be able to request an accommodation to be temporarily exempt from performing this job duty. On the other hand, if you are a store associate, your job may require you to stand in for extended periods of time. While being present in a store is an essential function of your position, providing you with a chair may be a reasonable accommodation to help you perform this function.
In the post-COVID era, one of the popular accommodation requests is remote work or a hybrid regime work. This accommodation also might be available to pregnant workers if their everyday on-site attendance is not required to perform their job duties. For example, if you are an accountant, you can work remotely using a laptop at home. However, if you are a nurse, your physical presence in the hospital is likely going to be mandatory and essential.
What are known limitations?
Known limitations are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to an employer, whether or not such condition meets the definition of disability.
If you believe that your pregnancy is causing any physical or mental conditions that may create pose difficulties for you to work, you or your representative must make your employer aware to trigger the employer’s obligations under the PWFA.
Who is a covered employer?
Covered employers are private and public sector employers with 15 or more employees, Congress, federal agencies, employment agencies, and labor organizations.
What is reasonable accommodation?
A reasonable accommodation is a change in the work environment or a change in the way your job is typically completed. An accommodation request is not reasonable if it causes an employer an undue burden.
The following is a non-exhaustive list of changes to your work environment that may be deemed reasonable accommodations. However, every situation is different and will require a fact-intensive analysis to determine if the requested accommodation is reasonable in your circumstances: breaks, sitting, schedule changes, remote work, parking, light duty, restroom and other facilities access, suspending one or more essential functions, acquiring or modifying equipment, uniforms, or devices, adjusting or modifying examinations or policies.
Note that PWFA prohibits employers from requiring an employee to accept an accommodation other than any reasonable accommodation arrived at through the interactive process.
How do I request accommodation?
You should tell your employer that you have a limitation associated with pregnancy, childbirth, or a related condition, and that you need a modification to your working conditions. You can make this request to your supervisor, HR manager, or anyone you believe has authority over you. While it is not necessary, it is recommended that you refer to PWFA and/or ADA when making your request. It is also beneficial to keep a written copy of your request. Consider sending a follow-up email or text message if you made the request during a verbal conversation.
What is the interactive process?
After you request an accommodation, an employer must engage in the interactive process. The employer must communicate with you about the limitations and what adjustments or changes are needed at work. The employer might violate your PWFA rights if the company does not engage in discussion, says that it cannot accommodate you without clear explanation, or answers with significant delays.
Can the employer request documentation?
An employer may seek information from your healthcare provider under limited circumstances. In any case, the employer must be reasonable in requesting the documentation. It is unreasonable to request documentation if the limitations and need for change in the work environment are obvious, the employer knows about them, or when an employer would not normally ask for documentation in a similar situation.
When an employer is acting reasonably and is allowed to request documentation from your doctor, it is limited to the confirmation of the condition (a simple statement that does not need to be a diagnosis), confirmation that the condition is related to pregnancy or childbirth (they do not need to be the sole and original cause of the condition), and a description of the necessary accommodation (changes or adjustments in the work environment).
The employer must keep medical information confidential.
What should I do if an employer requires me to undergo a medical examination?
It is illegal for an employer to require that an employee seeking accommodation be examined by a healthcare provider selected by the employer. You can refuse to undergo such medical examination and offer to provide documentation from your own doctor. However, the information that the employer can request is limited, and the request must be reasonable.
What should I do if my employer denies my PWFA rights?
If you believe that your employer violates your PWFA rights, you should contact an employment attorney to discuss your options.
Your recourse can include filing a Charge of Discrimination with the Equal Employment Opportunity Commission. You can use this link to learn more about filing an EEOC charge: https://www.eeoc.gov/how-file-charge-employment-discrimination. You also may have the right to file a lawsuit.
We recommend contacting an employment law attorney to determine how to proceed in your situation. In many cases, an attorney may help you negotiate with your employer to provide reasonable accommodation or discuss separation with your employer on favorable terms. If your employer already fired you, an attorney may assist in obtaining a severance package for you.
What remedies are available for violation of PWFA rights?
If the employer discriminated against you, the court may enjoin the employer from engaging in such unlawful practices and order reinstatement, back pay, and other relief.
Am I also protected under state or local law?
Your state, city, or local laws may provide additional or higher protections than those provided by PWFA. PWFA does not replace the more protective laws. You can use this link to check the regulations in your state: https://www.dol.gov/agencies/wb/pregnancy.
Sources:
EEOC, What You Should Know About the Pregnant Workers Fairness Act (Last visit Jun 11, 2024), URL: https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
EEOC, Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA) (Last visit Jun. 11, 2024), URL: https://www.eeoc.gov/summary-key-provisions-eeocs-final-rule-implement-pregnant-workers-fairness-act-pwfa.
Implementation of the Pregnant Workers Fairness Act, 89 FR 29096.
