Today has arrived.

Though several states beat Congress to the punch, as of today, employers are required under the Pregnant Workers Fairness Act (PWFA) to provide reasonable accommodations to employees who are limited from working due to pregnancy and childbirth.

I provide an overview of the PWFA below, but first, please join me for a free webinar to learn more about how to comply with the PWFA. On July 12, 2023 (1:00pm central), my friend, Seth Turner (Chief Strategy Officer at our client, AbsenceSoft), and I will host a downright riveting 60-minute webinar in which we will help you prepare for the PWFA. During our session, we will cover:

• The specifics of the PWFA – What is this new federal law and what are an employer’s obligations? How does the law differ from the ADA?
• What steps employers can take to comply, and
• How to deal with difficult PWFA situations

Register here for this Littler/AbsenceSoft webinar: Webinar Registration – Zoom

What is the PWFA?

Modeled after the Americans with Disabilities Act, the PWFA expands the protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable accommodations to known temporary limitations on their ability to perform essential job functions due to pregnancy, childbirth, or related medical conditions. Like the ADA, employers must engage in an interactive process with the employee to determine a reasonable accommodation, provided it does not impose an undue hardship on the employer.

How Does PWFA Differ from the ADA?

The PWFA adopts the same terms and meaning of “reasonable accommodation” and “undue hardship” as we find in the ADA, including the interactive process that we’ve come to know and love, which will be used to arrive at an effective reasonable accommodation.

However, the PWFA departs from the ADA in a couple respects. Most notably, under the ADA, a qualified individual is one who can perform the essential functions of their position. However, under the PWFA, an employee still is considered “qualified” if she is unable to perform an essential function for a “temporary period” so long as it could be performed “in the near future” and as long as the inability to perform essential function can be “reasonably accommodated.” As a result, PWFA appears to wipe out completely the “qualified” concept, which moves the discussion directly to undue hardship.

As the EEOC notes in its PWFA guidance, employers cannot:  

• Require an employee to accept an accommodation without a discussion about the accommodation between the employee and employer. This seemingly differs from the ADA, but it’s unclear from this two-page law how an employer would be penalized for failing to engage in the interactive process.
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working. This mirrors language from various state pregnancy accommodation laws.

Don’t Forget the New Poster

Employers, be sure to remove your now outdated EEOC “Know Your Rights” posters and replace them with the updated version found here, which speaks to the rights and obligations under the PWFA.

Though EEOC will issue regulations by year’s end, the law takes effect today.

See you at our webinar on July 12!