What Every Employer Should Know About the Pregnant Workers Fairness Act

By: Michael P. Sawicki, Esq.

The Pregnant Workers Fairness Act (PWFA) is a new law that requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”

On August 11, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) which was posted by the Federal Register for public comment. The 60-day public comment period closed on October 10, 2023.

The PWFA applies only to accommodations. Existing laws remain in force that make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions. In addition, 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 have laws in effect that provide accommodations for pregnant workers.

In Maryland, Chapters 547 and 548 of the 2013 Acts of the Maryland General Assembly and State Government Article § 20-609 require an employer, if the employee requests a reasonable accommodation for a disability caused or contributed to by pregnancy, to explore with the employee all possible means of reasonably accommodating the disability, including changing the employee’s job duties; changing the employee’s work hours; relocating the employee’s work area; providing mechanical or electrical aids; transferring the employee to a less strenuous or less hazardous position; or providing leave.

Congress and federal agencies, employment agencies, labor organizations, private employers with 15 or more workers, and state and local governments with 15 or more workers are subject to the law, according to the EEOC. Under the PWFA, pregnant workers should be able to make requests for reasonable accommodations, such as closer parking, uniforms in their size, and additional rest time.

The PWFA is similar to the Americans with Disabilities Act (ADA) in that it does not require an employer to provide an accommodation if doing so would bring it “undue hardship,” which means that it would come at great difficulty or expense to the employer. Unlike the ADA, where the employee must be able to do the essential functions of their job or they no longer qualify for accommodations, the PWFA says that workers do not always have to be able to perform an essential function temporarily because of their pregnancy as they will be able to resume those duties in the near future, generally up to 40 weeks.

Lactation, potential pregnancy, miscarriage, infertility and fertility treatments, and having an abortion are also under the purview of the PWFA. An employee who needs to take leave because of a limitation due to a condition related to pregnancy and childbirth should qualify for that leave under the PWFA.

What does this mean for employers? Employers cannot deny work to an applicant or employee because of their need for an accommodation, make a decision for a pregnant worker without any discussion on which accommodation they will receive or force them to go on leave if there is an accommodation that can be made to continue working. They also cannot retaliate against workers for advocating for themselves under the law and reporting discrimination nor can they try to stop workers from utilizing their legal protections.

The PWFA may be challenged and interpreted by the courts in future litigation. For now, the PWFA is the law and must be abided by employers.

If you have any questions or would like to get more information regarding the Pregnant Workers Fairness Act, please contact Batoff Associates, P.A. at 410-864-6211.