The federal Pregnant Workers Fairness Act (PWFA) was signed into law on December 29, 2022. The law becomes effective June 27, 2023.
Section 2(1) of the PWFA establishes that it shall be an unlawful employment practice for a covered entity (e.g., every employer with 15 or more employees) to:
- “not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of such covered entity.”
- “Known limitation”, section 5(5) of the PWFA, “means physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the employer whether or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act of 1990.”
The above are primarily workplace health and safety concerns. The PWFA, however, may be confused with primarily an HR function for the following reasons:
- The PWFA models reasonable accommodations after the provisions found within the ADA;
- The PWFA uses the phrase “pregnancy, childbirth, or related medical conditions” found in the Pregnancy Discrimination Act (PDA); and,
- The PWFA will be administered and enforced by the Equal Employment Opportunity Commission (EEOC).
The ADA excludes normal limitations of pregnancy as a disability. This is one step off point that differentiates PWFA as primarily health and safety related function rather than primarily an HR function. Pregnancy conditions that rise to the level of a disability may still be regulated through the ADA rather than the PWFA.
With regard to negotiating individual needs during a worker’s pregnancy, section 2(2) of the PWFA establishes that it shall be an unlawful employment practice for a covered entity to:
“require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process referred to in section 5(7).”
HR may stall advancements in workplace health and safety. In 1991 U.S. Supreme Court ruled in UAW v Johnson Controls that employer “fetal protection programs,” used as an OSHA lead exposure control, violated the PDA. In 2015 U.S. Supreme Court ruled in Peggy Young v UPS, that an employer’s denial of a pregnant worker’s request for a doctor advised lifting restriction to prevent a miscarriage, violated the PDA.
The PWFA exists now because of the failure of the PDA, ADA, and similar HR activities to effectively solve complex workplace health and safety issues. For best results, integrate the PWFA with the NIOSH Total Worker Health® Program.
Plain reading of the PWFA
Whenever a pregnant worker or their representative, communicates a pregnancy limitation such as recurring medical appointments, frequent or urgent need to urinate, nausea or vomiting, fatigue, heartburn, indigestion, swelling and fluid retention, yeast infections, backache, dizziness, balance difficulty, and headaches, to name a few, then a good-faith dialog between the worker and employer is conducted to determine temporary reasonable accommodation(s) that will protect the worker’s health while ensuring the worker remains productive.
Common limitations of pregnancy, many described above, may be readily accommodated with inexpensive methods and controls such as a stool to sit on. Chemical exposure to protect fetal health, as noted in UAW v Johnson Controls, and lifting restrictions to prevent miscarriage as noted in Peggy Young v UPS, just to name a couple of special hazard examples, will require experience in hierarchy of controls and skills in health and safety risk communication.
Pandora Box problem?
Section 5(5) of the PWFA allows an “employee’s representative” to communicate a pregnant worker’s limitations to the employer. EEOC enforcement guidance on accommodation and undue hardship under the ADA (document EEOC-CVG-2003-1) states, “The employer should be receptive to any relevant information or requests it receives from a third party acting on the individual's behalf because the reasonable accommodation process presumes open communication in order to help the employer make an informed decision.”
A Q&A on the employee’s representative by the EEOC includes the following: Q - May someone other than the individual with a disability request reasonable accommodation on behalf of the individual? A - Yes, a family member, friend, health professional, or other representative may request reasonable accommodation on behalf of an individual with a disability. The EEOC likely will hold with these interpretations under the PWFA.
A Pandora’s Box of risk conflicts may occur if a pregnant worker or the worker’s representative simply asks the employer “Are there any hazards to pregnancy at this workplace?”
Be careful how you answer the question. For example, your workplace has EMFs. Run an internet search for
Pregnancy risk assessment?
Every Western nation including every country in the EU, UK, Australia, and Canada, except the U.S., left unchanged by the PWFA, has legislation that requires employers to conduct and communicate workplace risk assessments for pregnant workers. Pregnant worker risk assessment practice is well known globally. It is presumed that the ADA’s “qualification standard,” that requires an employer risk assessment, will remain valid under the PWFA.
Destination?
The PWFA is a stand-alone federal statue. PWFA language sets the destination for the Act. Regulations to be published by the EEOC will provide a roadmap to reach PWFA destination(s). Section 4 of the PWFA states that “not later than 2 years after the date of enactment of this Act, the Commission shall issue regulations … to carry out this Act.” Various organizations are working now to influence future PWFA regulations.
The EEOC is expected to begin a muddled enforcement of the PWFA on June 27, 2023. The EEOC’s draft 2023-2027 Strategic Enforcement Plan (public comment on draft ended February 9, 2023) includes that the PWFA will be an “enforcement priority” for the Commission. The U.S. Congressional Budget Office predicted prior to the passage of the PWFA, that the Act will generate 1,500 EEOC claims during the first three years after the law’s enactment. How many of the early EEOC claims will be of the “right to sue” variety remains to be seen.
