The U.S. Equal Employment Opportunity Commission (EEOC) on Aug. 7 Announced a Proposal for Implementing the Pregnancy Workers Fairness Act (PWFA)

The PWFA is a new federal law that went into effect June 27, 2023. It requires private and public employers with at least 15 employees to provide “reasonable accommodations” to workers known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” The PWFA applies only to accommodations. Existing federal and state laws make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth or related medical conditions. The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states, including New Jersey, New York, and Pennsylvania have laws that provide accommodations for pregnant workers. Moreover, most states, including New Jersey and New York, have some form of workplace breast feeding rights.

Pursuant to the PWFA covered employers cannot:

1. Require an employee to accept an accommodation without a discussion about the accommodation between the worker and employer;
2. Deny a job or other employment opportunities to a qualified employee or applicant based on the persons need for a reasonable accommodation;
3. Require an employee to take leave if another reasonable accommodation can be provided that would let the employee to keep working;
4. Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
5. Interfere with any individuals rights under the PWFA proceeding.

Reasonable accommodations under the PWFA under the proposed rules may include: permitting more frequent bathroom breaks or allowing pregnant workers to drink water at their workstations; the ability to sit at a workstation; closer parking; flexible hours; remote work; appropriately sized uniforms and safety apparel; additional break time to use the bathroom, eat and rest; leave to recover from childbirth; and reassignment from activities that are strenuous or involve exposure to compounds or chemicals which are unsafe to for the pregnancy or the fetus.

Employers must not only understand and comply with the PWFA, the following federal laws (and some state and local laws) provide protections for pregnancy, childbirth, or related medical conditions:

1. Title VII (enforced by the EEOC), which protects an employee from discrimination based on pregnancy, childbirth, or related medical conditions; and requires covered employers to treat a worker affected by pregnancy, childbirth, or related medical conditions the same as other workers similar in their ability or inability to work;
2. The Americans With Disabilities Act (enforced by the EEOC), which protects an employee from discrimination based on disability; and requires covered employers to provide reasonable accommodations to a person with a disability if the reasonable accommodation would not cause an undue hardship for the employer. While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be disabilities under the law.
3. The Family and Medical Leave Act of 1993 (enforced by the U.S. Department of Labor), which provides covered employees with unpaid, job-protected leave for certain family and medical reasons;
4. The PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act) (enforced by the U.S. Department of Labor), which broadens workplace protections for employees to express breast milk at work.

Employers need to stay abreast of the current federal, state and local laws to ensure compliance. The employment group at Stark & Stark can help your company stay abreast of the existing and new laws which can affect your business.