Several provisions of the $1.7 trillion, 4,400-page Omnibus spending bill passed by Congress and expected to be signed by the President, are additional employment protections for pregnant women. Today we cover the Pregnant Workers Fairness Act (“PWFA” or “Act”) that requires covered employers to provide reasonable accommodations to women with limitations caused by pregnancy, childbirth, or related medical conditions. Next week we will cover a second change provided for in the bill, the PUMP for Nursing Mother’s Act.
PREGNANT WORKERS FAIRNESS ACT
The PWFA requires employers with 15 or more employees to provide reasonable accommodation to qualified employees for the known limitations related to pregnancy, childbirth or related medical conditions. The Act also creates five new unlawful employment practices.
Unlawful Employment Practices
The Act identifies five new unlawful employment practices including:
- Failing to make reasonable accommodation to the known limitations related to pregnancy, childbirth and related medical conditions of a qualified employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business;
- Requiring a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
- Denying employment opportunities to a qualified employee if the denial is based on the need to make reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions of the employee;
- Requiring a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to pregnancy, childbirth, or related medical conditions of the qualified employee; and
- Taking adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to pregnancy, childbirth, or related medical conditions.
The law defines several terms new to Title VII. For example, a “qualified employee” is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position. An individual is considered qualified even if the inability to perform the essential functions is for a temporary period, can be performed in the near future and the inability to perform the essential function can be reasonably accommodated. The terms “reasonable accommodation” and “undue hardship” have the same meaning as used in the Americans with Disabilities Act (ADA).
“Known limitations” mean the physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee, or her representative, has communicated to the employer and the condition need not meet the definition of a disability under the ADA.
Like the ADA, the Act affords a defense to a claim of unlawful discrimination where the employer demonstrates good faith efforts, in consultation with the employee with known pregnancy related limitations, to identify and make reasonable accommodation that provides the employee with an equally effective opportunity and does not cause undue hardship on the operation of the employer.
The remedies of the Act are the same available to a plaintiff under Title VII which include recovery of damages, attorney’s fees and costs and injunctive relief.
The PWFA will require employers to treat temporary restrictions caused by pregnancy, childbirth and related medical conditions like disabilities under the ADA. This will require employers to engage in an interactive process that designed to identify and provide reasonable accommodation to those restrictions and only treat involuntary leave of absence as an accommodation of last resort. Documenting those efforts, just like with the ADA, will be key in the employer being able to establish its defense that it engaged in good faith efforts to identify and make reasonable accommodations.
You can access the Act here.