On June 27th, 2023 the Pregnant Workers Fairness Act (PWFA) took effect. The PWFA ensures that workers experiencing pregnancy, childbirth, or related medical conditions such as those undergoing fertility treatment, have postpartum depression, have had an abortion, or experienced pregnancy loss, have the right to reasonable accommodations in the workplace. The Act declares that it is unlawful for an employer with fifteen or more employees to:
- fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity's business operation;
- require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
- deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
- require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
- take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.
Violating this act can make an employer liable for compensatory and punitive damages. 42 U.S.C. § 1981a. A "qualified employee" is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with exceptions for the inability to perform an essential function for a temporary period, the essential function could be performed in the near future, and the inability to perform the function could be reasonably accommodated.
The PWFA closes up loopholes left by the 1978 Pregnancy Discrimination Act which made it illegal for employers to consider pregnancy in hiring, firing, and promotion decisions. The Act noted that pregnant women or those affected by pregnancy-and-childbirth related conditions should be treated the same as, and receive the same benefits as others who are "similar in their ability or inability to work." 42 U.S.C. § 2000e (1)(k). The statement is vague and was frequently litigated with questions over what conditions were "similar" and what kind of benefits employers should provide.
Before the PWFA was put into place, there was no clear standard on pregnancy discrimination laws and many states and localities largely took their own approach to them. The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. New York State already has in place pregnancy accommodation and pregnancy discrimination laws. In New York, it is illegal for any employer with more than four employees to fire an employee because she is pregnant or to change the terms, conditions, and privileges of employment because of pregnancy, childbirth, or related conditions. It is also illegal for an employer to refuse to hire an applicant because she is pregnant. N.Y. Exec. Law § 296(1). Additionally, New York State law explicitly guarantees pregnant workers the right to reasonable accommodations including:
- occasional breaks to rest or drink water,
- a modified work schedule,
- leave for related medical needs,
- available light duty assignments, and
- transfers away from hazardous duty.
9 N.C.Y.R.R. § 466.11.
For further information regarding the federal Pregnant Worker Fairness Act, please contact Laura L. Spring, Esq. at CCBLaw.