On June 27, 2023, the EEOC began accepting charges under the Pregnant Workers Fairness Act (“PWFA”). The PWFA requires “covered employers” to provide “reasonable accommodations” to a worker’s known limitations arising from pregnancy, childbirth or other related conditions, unless doing so would impose an undue hardship on the employer. With more than 30 states and cities having already adopted provisions to protect pregnant women, this new law ensures those protections are interpreted similarly.

In 2015, the Supreme Court provided the framework for PWFA by announcing that employers needed a “sufficiently strong” reason to deny accommodations for pregnant workers.  See Young v. United Parcel Service, Inc. 575 U.S. 206.  The Court further found that a refusal to accommodate pregnant workers, while accommodating non-pregnant workers, was likely a violation of the Pregnancy Discrimination Act (“PDA”).  See id. This ruling placed a burden on pregnant employees to show discrimination through the comparison of accommodations received by non-pregnant employees.

To combat this daunting task, the PWFA was enacted to ensure pregnant women received reasonable accommodations for their needs and created a cause of action against employers who deny opportunities based on those needs, even in the absence of an underlying medical condition. As a result, the PWFA extends further than PDA, an act that only requires accommodations in specific situations and the American Disabilities Act (“ADA”), an act that does not recognize pregnancy as a disability. Although the PWFA utilizes and incorporates many reasonable accommodation concepts within ADA, there are a few key differences that must be noted by employers.

Both the ADA and PWFA define a “qualified employee” as one who can perform the essential functions of a job with or without an accommodation. However, the PWFA broadens this definition by expressly providing that an employee who is temporarily unable to perform the essential functions due to pregnancy or the like, may still be considered qualified so long as the following conditions are met: (a) the inability to perform the essential function is temporary; (b) it could be performed in the near future; and (c) the inability to perform in the essential function can be reasonably accommodated.

The conditions create an obligation for an employer to temporarily waive or modify essential job duties as an accommodation and permit the pregnant employee to continue working in that role. This prevents the employer from requiring leave as a reasonable accommodation, as allowed under the ADA. As a consequence, it is crucial that employers review the nuances of the PWFA to ensure their policies and procedures provide the required protections for those who are affected by pregnancy, childbirth or related conditions.