The Pregnant Workers Fairness Act Expands Workplace Protections for Pregnant Employees and Applicants Suffering From Physical or Mental Conditions
The United States Congress recently enacted the Pregnant Workers Fairness Act (“PWFA”), effective June 27, 2023. The new law applies to private employers with 15 or more employees and certain public sector employers. It requires covered employers to provide reasonable accommodations for the known physical or mental conditions related to the pregnancy, childbirth, or related medical conditions of qualified employees and applicants, unless doing so would impose an undue hardship on the operations of the employer. The protections provided by the PWFA expand upon entitlements already existing under the Americans with Disabilities Act (“ADA”) and the Pregnancy Discrimination Act (“PDA”).
Under the ADA, covered employers are prohibited from discriminating against employees and applicants on the basis of disability and are required to provide reasonable accommodations to qualified individuals with disabilities who are able to perform the essential functions of their position with or without reasonable accommodation. While the ADA encompasses medical conditions related to pregnancy, it does so only to the extent that such conditions rise to the level of a “disability,” as defined under the ADA to mean a mental or physical impairment that substantially limits one or more major life activities (for example, gestational diabetes).
Moreover, pregnancy discrimination is already prohibited pursuant to the PDA, which amended Title VII of the Civil Rights Act of 1964. The PDA requires covered employers to provide reasonable accommodations to pregnant employees to the extent that those employers accommodate other employees who are “similar in their ability or inability to work.”
The PWFA seeks to fill these gaps and expand existing protections for pregnant workers suffering from mental or physical conditions in four meaningful ways.
- First, employees and applicants suffering from mental or physical conditions related to pregnancy or childbirth no longer need to prove their conditions rise to the level of a “disability,” as defined under the ADA, to be entitled to reasonable accommodations.
- In addition, employees and applicants do not need to be able to perform all of the essential functions of the job with or without reasonable accommodation (as is required under the ADA) to be entitled to protections – instead, employes and applicants are covered under the PWFA so long as their inability to perform an essential function is for a temporary period of time, the essential function can be performed in the near future, and the inability to perform the essential function can be reasonably accommodated.
- Furthermore, under the PWFA, the duty to accommodate a pregnant employee is not dependent on whether the employer accommodates other employees similar in their ability or inability to work, unlike under the PDA.
- Finally, under the PWFA, employers are prohibited from requiring employees to take leave (regardless of whether it is paid or unpaid) if another reasonable accommodation can be provided.
In light of the upcoming effective date of June 27, 2023, Arizona employers should review and update their employee handbooks to comply with the PWFA and should train their Human Resources and other management employees on the new requirements. And, just as under the ADA, employers should identify the essential functions of each position and consider enumerating those essential functions in job descriptions.