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This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2024, authored by attorney Shelby Shroff. The series was featured in Arkansas Business.
Every year, there are about 2.8 million pregnant workers in America’s workforce. Indeed, 70% of women will become pregnant while employed, and 80% of those women will work until the final month of their pregnancy.
To protect the needs of pregnant workers, Congress passed the Pregnant Workers Fairness Act (PWFA) at the end of 2022. The law went into effect on June 27, 2023.
So what does the PWFA require? Basically, the law requires employers with 15 or more employees to provide “reasonable accommodations” to an applicant or employee’s known limitations due to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an “undue hardship.” The duty to accommodate under the PWFA is similar to an employer’s responsibility to accommodate workers with disabilities under the Americans with Disabilities Act (ADA). Generally, once an employer becomes aware of the fact that a pregnant worker may need an accommodation, the employer and employee must walk through the interactive process.
The EEOC published proposed rules for the PWFA on Aug. 7, 2023. The rules are still open for public comment and are not final, but they provide a glimpse of how we expect the EEOC to enforce this law. One way that the PWFA differs from the ADA is that a worker is considered to be “qualified” even if the employee is unable to perform one or more essential functions of the job, so long as:
- The inability is temporary
- The individual can perform the essential function in the near future
- The inability to perform the essential function can be reasonably accommodated by the employer without undue hardship; this may require an employer to suspend an employee’s obligation to perform an essential job duty and reassign the task to another worker, so long as doing so does not create an undue hardship on the employer
The EEOC is interpreting what qualifies as a “related medical condition” broadly. Limitations may relate to pregnancy, childbirth, post-partum symptoms, and symptoms related to fertility treatments. Limitations can be modest, minor, or episodic. Examples include morning sickness, inability to walk or stand for long periods of time, need for frequent water or snack breaks, need for bed rest, postpartum depression, and more.
Examples of possible accommodations an employer may need to consider include permission to sit or drink water, receiving closer parking, flexible hours, access to appropriately sized uniforms and safety apparel, receiving additional break time to use the bathroom, eat and rest, being excused from strenuous activities or heavy lifting, temporarily reassigning job duties, and as a last resort, taking leave or time off. It is alright for employers to ask for a doctor’s note before providing accommodations, especially if an employee’s condition or need for an accommodation is not obvious.
A significant number of employers already make allowances for their employees experiencing pregnancy or childbirth-related limitations, but the PWFA makes accommodating those employees a legal obligation. If you get a request from an employee for some type of change to their work duties or work environment that is related to pregnancy or childbirth, don’t ignore it – listen to the employee, engage in the interactive process, and try to reach some type of mutually agreeable reasonable accommodation that allows the employee to continue performing their job. And consider adding a provision to your employee handbook, especially if you already have one for reasonably accommodating employees with disabilities or for religious reasons.
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A related law that employers should be aware of is the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which took effect on April 28, 2023. Under the PUMP Act, employers are required to create or convert a space in the workplace for workers to express breast milk. The area must be shielded from view and free from any intrusion from co-workers and the public. A single occupancy bathroom with a lock is not sufficient. The space may be used for another purpose, so long as it is available whenever it is needed by a nursing employee. Adding a lock to an employee’s private office door can suffice, or providing another space with a lock on the door that’s primary purpose is for the use of nursing workers.
There is an exemption in the PUMP Act for employers with fewer than 50 employees. Exempt employers are not subject to the PUMP Act’s requirements if the requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
However, even small employers should use caution before relying on the exemption, and should make every attempt to find a space the complies with the PUMP Act’s requirements.
Shelby Shroff is a lawyer on Wright Lindsey Jennings’ labor and employment team in Little Rock. Her practice includes providing advice on employment law compliance and defending employment litigation.