Navigating the New Landscape of Pregnancy Rights
By VICKY BROWN
Today, we’re talking about a topic that affects businesses across the country: the Pregnant Workers Fairness Act, or PWFA.
Now, for those of you in California, you might be wondering why we’re discussing this. Yes, we already have strong protections for pregnant workers in our state. But don’t tune out just yet. Even California employers need to pay attention to this new federal law. It’s bringing some changes that go beyond our current state requirements, and trust me, some of these might catch you off guard if you’re not prepared.
Let’s start with the basics. The Pregnant Workers Fairness Act went into effect on June 27, 2023. It’s a federal law that requires employers with 15 or more employees to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions.
Now, you might be wondering why we needed another law when we already have the Pregnancy Discrimination Act and the Americans with Disabilities Act. Well, neither of these laws fully covered common pregnancy-related conditions. The PWFA fills that gap.
So, what does this mean for you as an employer? Let’s break it down.
First, the PWFA requires you to provide reasonable accommodations for pregnancy-related limitations. This isn’t just about disabilities. It covers a wide range of conditions related to pregnancy, childbirth, and even related medical conditions.
And when I say related medical conditions, I mean related. The EEOC has cast a wide net here, so it’s crucial you understand the full scope.
When we say related medical conditions, we’re not just talking about the obvious pregnancy-related issues. The EEOC has defined this term so broadly that it covers an extensive range of scenarios.
First, we have current pregnancies. This one’s pretty straightforward – it covers all the physical and mental conditions that can arise during pregnancy, from morning sickness to gestational diabetes.
But it doesn’t stop there. The PWFA also covers past pregnancies. This means conditions related to previous pregnancies, like postpartum depression or physical recovery after childbirth, are included.
Now, here’s something you might not have considered – the PWFA even covers potential pregnancies. This could include conditions related to fertility treatments and family planning if they impact the employee’s ability to perform their job.
And – there’s more. The definition extends to various reproductive health issues as well.
And let’s not forget about lactation. Breastfeeding mothers are also protected under this law, which means you need to consider accommodations for expressing milk at work.
“…The PWFA also covers past pregnancies. This means conditions related to previous pregnancies, like postpartum depression or physical recovery after childbirth, are included.“
The scope of this definition is truly expansive. It covers the entire reproductive cycle, from fertility to postpartum recovery and beyond. This means that as an employer, you need to be prepared to handle accommodation requests for a much wider range of situations than you might have initially thought.
Remember, the goal here is to ensure that workers aren’t forced to choose between their jobs and their reproductive health. It’s a significant shift in how we approach these issues in the workplace, and it’s going to require some careful navigation on your part.
Now, let’s talk about accommodations. The PWFA introduces something called “predictable assessments.” These are accommodations that the EEOC believes should be granted in virtually all cases. They include:
- Allowing an employee to carry water and drink as needed
- Providing additional restroom breaks
- Allowing an employee to sit when work requires standing, and vice versa
- Providing breaks to eat and drink as needed
The EEOC’s stance is that these accommodations generally don’t cause undue hardship. So, if an employee requests one of these, you should probably grant it without much fuss.
But here’s where it gets really interesting for California employers. The PWFA requires something that goes beyond our current state law. It says you might need to temporarily suspend essential job functions as a reasonable accommodation.
What does that mean? Well, if an employee can’t perform an essential function due to a pregnancy-related condition, but they’ll be able to do it again in the near future, you might need to excuse them from that function temporarily. And when the EEOC says “near future,” they mean any reasonable, temporary period where the employee is expected to recover or resolve the limiting condition, up to 40 weeks – which is roughly the duration of a pregnancy.
Now, you’re probably thinking that this all sounds like it could be a real challenge for your business. And you’re right, it could be. But remember, you don’t have to provide an accommodation if it would cause undue hardship. The key is to engage in the interactive process and really explore all options before making that determination.
Now let’s talk about HR’s old friend – documentation. The PWFA puts some limitations on when you can request supporting documentation or medical certification. For example, if the limitation and need for accommodation are obvious, you shouldn’t ask for documentation. The same goes for those “predictable assessments” we talked about earlier. If an employee says they’re pregnant and needs to carry a water bottle, just let them carry the water bottle.
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So, what should you do to prepare? First, review your policies. Make sure they’re up to date and compliant with both California law and the PWFA. Your policies should clearly state:
- How employees can request accommodations
- That accommodation requests are subject to the interactive process
- That accommodations won’t be available if they constitute an undue hardship
Next, train your managers and supervisors. They need to understand these new requirements and how to handle accommodation requests appropriately.
Now, here’s something important to note. The law is in effect, so the EEOC has started accepting complaints about violations. So you need to be compliant now.
For those of you who aren’t in California, or who have operations outside of California, make sure you’ve updated your workplace posters. The EEOC has released a new “Know Your Rights” poster that needs to be displayed in most workplaces.
I get that this is a lot to take in. The PWFA represents a significant shift in how we approach accommodations for pregnant workers. But remember, the goal here is to support pregnant employees and help them continue working safely. By being proactive and compassionate in your approach, you’ll create a more inclusive workplace and avoid potential legal issues.
As always, if you’re unsure about how to handle a specific situation, don’t hesitate to consult with an HR professional or legal counsel. It’s always better to ask for help than to make a mistake that could lead to a complaint or lawsuit.
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