In December of 2022, Congress passed the Pregnant Workers Fairness Act (PWFA), requiring covered employers to provide “reasonable accommodations” for job applicants’ and employees’ “known limitations” related to preg­nancy, childbirth, or related medical conditions, unless such accommodations would cause the employer an “undue hardship.”

The PWFA largely mirrors the Americans with Disabilities Act (ADA), though one notable difference is the PWFA’s concept of a “known limitation.” Unlike the ADA, the PWFA does not require that a limitation relating to preg­nancy or childbirth be severe. In other words, the PWFA is designed to provide accommodations for uncomplicated, healthy pregnancies and births.

The PWFA went into effect on June 27, 2023, and the U.S. Equal Em­ployment Opportunity Commission (EEOC) has begun accepting charges for violations occurring on that date or later. The PWFA complements, but does not replace, other laws that “apply to workers affected by pregnancy, child­birth, or related medical conditions,” including Title VII. The EEOC is still in the process of announcing regulations to carry out the law. Public comment on the EEOC’s proposed regulations ends on October 10, 2023, and the EEOC will issue its final rules thereafter.

A perennial issue regarding the rights of pregnant, public-safety employees is whether a “reasonable accommodation” includes a light duty assignment. While employers are generally not required to create light duty work under the ADA, it remains to be seen whether – under the EEOC’s proposed rules – PWFA requires employers to assign available light duty to pregnant employees upon request. While these rules are ironed out, the EEOC has published a short fact sheet outlining three key provisions of the PWFA.

First, only certain employers must abide by the PWFA. “Covered employers include private and public sector employ­ers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.”

Second, while the EEOC’s final rules will provide more guidance, the EEOC has indicated that “reasonable accommodations” under the PWFA might include the following: “the abil­ity to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.”

Accommodations like these are required up to the point of “undue hardship” on the employer, which the EEOC defines as a “significant difficulty or expense.”

Finally, the PWFA prohibits covered employers from (1) requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer; (2) denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation; (3) requiring an employee to take leave if another rea­sonable accommodation can be provided that would let the employee keep working; (4) retaliating against an individual for reporting or opposing unlawful discrim­ination under the PWFA or participat­ing in a PWFA proceeding (such as an investigation); and (5) interfering with any individual’s rights under the PWFA.

Pregnant Workers Fairness Act, 42 U.S.C. § 2000gg et seq. (2023).

This article appears in the October 2023 issue of our monthly newsletter, Public Safety Labor News.

Also in the October 2023 issue:

• No Weingarten Rights When Merely Receiving Counseling Memo
• No Evidence That Firefighter Would Attack Fellow Firefighter At Work
• When Is An Employer Liable For Pre- And Post-Shift Work?
• Missouri Police Chief Entitled To Pre-Termination Hearing
• Officer Had Due Process Right To Review Third-Party Video Before Interview
• No Whistleblower Protections When Providing Evidence As A ‘Trophy’
• Academy Trainees Entitled To Be Paid As Officers Not Cadets
• When Text Messages Are A Matter Of Public Concern
• Officer Entitled To Post-Disability Health Insurance
• Officers Entitled To Privacy About Participation In January 6 Rally