Updates to the Pregnant Workers Fairness Act (PWFA)

On December 29, 2022, the 2023 Consolidated Appropriations Act was officially passed, which included an amendment to the Pregnant Workers Fairness Act (PWFA) that will take effect on June 27, 2023. As the PWFA is currently written, it simply prevents employers from taking adverse action due to pregnancy; however, this new amendment goes well beyond that.

This new amendment applies to all private employers with fifteen or more employees as well as many public employers, including municipalities.

PWFA and ADAAA

While the Americans with Disabilities Act and its Amendments Act (ADAAA) already covers much of what’s stated within the PWFA, the PWFA cements into federal law protections for pregnant workers and has a few key factors that go beyond what’s required from the ADAAA.

One of the main differences between the ADAAA and the PWFA relates to what “qualifies” an employee to receive reasonable accommodations. Similar to the ADAAA, the term “qualified employee” means “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position…,” however, the PWFA adds to this established definition by stating,

“…except that an employee or applicant shall be considered qualified if–

1. any inability to perform an essential function is for a temporary period;
2. the essential function could be performed in the near future; and
3. the inability to perform the essential function can be reasonably accommodated.”

In short, even if an employee temporarily cannot complete the essential functions of the job in question, that employee would still qualify for accommodations as long as they are able to return to completing those essential functions in the future.

PWFA Implications: Five Unlawful Practices

Section 103 of this new amendment describes the five employment practices that are deemed unlawful for a covered entity. The words in italics are the exact wording from HR2617 Consolidated Appropriations Act 2023 and below each quote is a brief breakdown of some of the implications:

“It shall be an unlawful employment practice for a covered entity –”

1. “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 the business of such covered entity”
   • The most noteworthy key term described here is, “known limitations.” While the ADAAA requires accommodations for individuals with “disabilities,” the PWFA requires accommodations for individuals with “limitations” related to childbirth or related medical conditions. While it will be interesting to see how this term gains additional clarity over time, it’s likely the threshold that would trigger reasonable accommodations with the PWFA is lower than that of the ADAAA.
   • Also, the terms, “reasonable accommodations” and “undue hardship,” are also used within the ADAAA, and generally set the bar quite high for what accommodation would be too difficult or expensive for the covered entity.
2. “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…”
   • Most employers already consider it best practice to go through the “interactive process” as it relates to the ADAAA, but the PWFA now requires this aspect when determining the appropriate accommodations.
3. “deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee”
   • This closely parallels the ADAAA, stating the qualified employee cannot miss out on positive opportunities due to their need for reasonable accommodation.
4. “require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee”
   • Although it’s not typical, there are conditions where a leave would be considered a reasonable accommodation under the ADAAA; however, the PWFA sets the bar higher for this option to be considered, especially when there are other options available.
5. “take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee”
   • Similar to item three on this list, this also closely parallels the ADAAA, stating the qualified employee cannot be the recipient of any disadvantages due to their need for reasonable accommodations.

This new amendment will undoubtedly gain clarity over time, but for now, it has implications that must be carefully considered within the workplace. For additional information regarding how to best implement the considerations from PWFA or the ADAAA, please contact us at www.newfocushr.com.

Updated by: Jason Love, SHRM-CP, CLSSGB

                      HR Consultant

                      2/27/2023