The Expansion Of Employees’ Rights Following The Implementation Of The Pregnant Workers Fairness Act
Introduction:
The rights of employees who are, or may become pregnant across the United States were recently expanded with the implementation of the Pregnant Workers Fairness Act (“PWFA”). The PWFA became effective June 27, 2023, and it is important that employers be aware of the new avenues for liability created by its enactment.
The PWFA supplements existing worker’s rights frameworks, such as the Civil Rights Act of 1964 and the Americans with Disabilities Act, to expand employees’ protections for workplace accommodations specific to pregnant individuals. The PWFA grants regulatory authority to the Equal Employment Opportunity Commission (“EEOC”) to accept and rule on claims of pregnancy related discrimination matters.
Parties Implicated by the PWFA – Employees & Employers:
To understand the implications of the PWFA’s enactment, it is important to first identify which employers will be affected. Throughout its statutory text, the PWFA references those who owe a duty under its guidance as “covered entities.” In the context of the PWFA, “covered entities” includes, in its broadest sense, an employer, employment agency, labor organization, joint labor-management committee controlling apprenticeship or other training or retraining program. To qualify this definition simply, employers are subject to the regulations promulgated by the PWFA if they have at least fifteen (15) employees, regardless of the status of the employer as a private or public entity. The PWFA specifies that “covered entities” includes employers of state employees, such as Congress or other Federal Agencies.
Further, an understanding as to which employees are included within the text of the PWFA is equally as important. In short, employees who now enjoy the protections afforded under the PWFA include all employees who are employed by a public or private employer who is considered a “covered entity.” The PWFA reaches broadly in terms of employees and includes within its jurisprudence job applicants as well. Those included as employees under the PWFA do not include, however, individuals who have been appointed or elected to their position of employment.
To be considered a “qualified employee” under the PWFA, an individual must be one who, with or without reasonable accommodation, can perform the essential functions of the employment position. The PWFA qualifies this definition however to further include those who have an inability to perform an essential job function for a temporary period, those who will be able to perform the essential job function in the near future, and also those who would be able to perform the essential job functions with a reasonable accommodation.
Unlawful Conduct Under the PWFA:
At its core, the PWFA makes it an unlawful employment practice for a covered entity to not make reasonable accommodations to the known limitations of a qualified employee, if the known limitations relate to pregnancy, childbirth, or related medical conditions. To be brought within the purview of the PWFA, the employment action at issue must have occurred on or after June 27, 2023. A “known limitation” can include a physical or mental condition arising from an associated pregnancy that has been communicated to the employer.
However, it would not be an unlawful employment practice to deny reasonable accommodations, under the PWFA, if the covered entity is able to demonstrate that the requested accommodation would impose an undue hardship on the operation of the business of such covered entity. While the PWFA does not set out what “reasonable accommodations” are to include, accommodations that employers may be compelled to provide include alternative communication formats, accessible parking, service animals, job reorganization, reassignment, scheduling changes, screen reading software, etc.
The PWFA dictates that it shall be unlawful for employers to require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process between the employer and such qualified employee. The PWFA additionally makes it unlawful for an employer to deny any employment opportunities to a qualified employee if such denial is premised on the need of the covered entity to make reasonable accommodations. Moreover, under the PWFA it shall be unlawful for an employer to require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to ameliorate pregnancy related limitations.
Retaliation & Coercion:
The PWFA also restricts employers from engaging in acts of retaliation or coercion against qualified employees, or those who may assist a qualified employee in bringing a discrimination claim under it. To this end, employers are barred from taking any adverse employment actions against a qualified employee on account of that employee requesting or using a reasonable accommodation.
Further, the PWFA makes it unlawful for an employer to discriminate against any employee for an employee’s opposition to any act or practice that is inconsistent with the provisions of the PWFA, or for an employee’s assistance or participation in an investigation or proceeding under the PWFA. Additionally, the PWFA makes unlawful any employer coercion or intimidation which would operate to affect an employee’s decision to request reasonable accommodations, an employee’s access to reasonable accommodations, or an employee’s participation in ensuring that reasonable accommodations be made.
Importantly, however, the PWFA does contain a key exclusion which allows employers to escape an attachment of liability under it. This exclusion states that if an unlawful employment practice involves the provision of a reasonable accommodation, damages may not be awarded if the covered entity demonstrates good faith efforts, in consultation with the employee, to identify and make a reasonable accommodation that would provide such employee with an equally effective opportunity and would not cause an undue hardship on the operation of the covered entity.
Conclusion:
With the implementation of the PWFA, employers should take steps to assure their employment policies and contracts conform to the requirements of the new regulation. Employers would be wise to ensure job descriptions make clear the “essential functions” of that position. Employers should also make themselves aware of what reasonable accommodations can be employed as to specific positions within their enterprise and should take steps to establish a comprehensive reporting scheme for requests for reasonable accommodations.
Employers ought to keep an eye out for further guidance from the EEOC, as the PWFA mandates that the EEOC shall provide further regulations and examples of reasonable accommodations which address pregnancy related health issues within one (1) year of the PWFA’s enactment.
Employers that would like legal counsel to review their existing employment policies and contracts are welcomed to contact any member of the Labor & Employment group here at Brown & Connery, LLP via e-mail or call 856-854-8900. Also, please visit the Brown and Connery website at www.brownconnery.com to learn more about our legal services.
By: J.T. Triantos, Associate and Ryan Nameth, Law Clerk at Brown & Connery, LLP