The Pregnant Workers Fairness Act: Impacting Employers
The Pregnant Workers Fairness Act (PWFA) was signed into law on December 29, 2022, and goes into effect on June 27, 2023. What is this new law all about and what are some of its impacts? To answer these questions, a summary of the new law is presented along with three very important related topics, which include PWFA’s:
- Differences from other federal laws and relationship with the Americans with Disabilities Act (ADA)
- Effect on the Mental Health of a Qualified Employee
- Impact to an Employer’s Integrated Disability Absence Management Plan
Under this new law, pregnant workers have the right to receive reasonable accommodations when affected by their pregnancy, childbirth, or related medical conditions.
What employers are impacted (e.g., “covered employers”)?
Employers who have 15 or more employees.
What employment practices are unlawful?
- Not making a “reasonable accommodation” for a “known limitation” related to the pregnancy, childbirth, or related medical conditions of a “qualified employee,” unless such accommodation would impose an “undue hardship” on the operation of the business;
- Requiring a “qualified employee” to accept an accommodation other than any “reasonable accommodation” arrived at through the “interactive process”
- Denying 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” of the “qualified employee”;
- Requiring a “qualified employee” to take leave, whether paid or unpaid, if another “reasonable accommodation” can be provided to address the “known limitations” of the “qualified employee”;
- 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.
Definitions key to this new law
The term “known limitation” means physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability specified in the ADA.
The term “qualified employee” means an employee or applicant who, with or without a reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified for this leave if:
(A) any inability to perform an essential function is for a temporary period;
(B) the essential function could be performed in the near future; and
(C) the inability to perform the essential function can be reasonably accommodated; and
The terms “reasonable accommodation” and “undue hardship” will have the meanings given such terms in the ADA including with regard to the “interactive process” that will typically be used to determine an appropriate reasonable accommodation.
In summary, this law requires employers to make reasonable accommodations for workers with known limitations related to pregnancy, childbirth, or related medical conditions unless it would cause undue hardship.
Differences from other federal laws and relationship with the ADA
The PWFA expands protections and rights to pregnant employees and uses much of the same framework as the ADA. To appreciate this new law, let’s begin by understanding two other federal laws that address pregnancy and accommodations. Specifically, let’s look at the federal Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).
The PDA prohibits discrimination because of pregnancy, childbirth, or related medical conditions and requires accommodations for pregnant employees only to the extent that an employer provides those accommodations to other non-pregnant employees with similar abilities and inabilities to work. Because accommodations under the PDA are restricted by this requirement, it is frequently more complicated to apply, making accommodations through this law limiting. The ADA requires employers to provide pregnant employees with reasonable accommodations only if the employee has a covered pregnancy-related disability. Pregnancy itself is not considered a disability under the ADA, making accommodations through this law considerably limiting. However, because the PWFA does not have these types of limitations and it expands coverage to include many other situations in which pregnancy, childbirth, or related medical conditions must be accommodated, this law will be more far reaching.
Now, let’s explore the relationship between the PWFA and the ADA to understand where it connects and where it does not.
- The PWFA requires employers to provide a pregnant employee or job applicant who has a temporary physical or mental limitation due to pregnancy, childbirth, or related medical conditions to be temporarily excused from performing the essential functions of their job if:
(a) any inability to perform an essential function is for a temporary period,
(b) the essential function could be performed in the near future; and
(c) the inability to perform the essential function can be reasonably accommodated.
The ADA does not generally require an employer to accommodate an employee by removing an essential function of an employee’s job.
- The PWFA covers medical conditions that are shorter in duration (e.g., temporary), while the ADA, generally does not cover a short-term illness or other temporary impairment unless it is severe enough.
- The PWFA covers pregnancy, childbirth, or related medical conditions when a “known limitation” exists that is defined as a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical condition whether or not such condition meets the definition of disability specified in the ADA. Therefore, the threshold to meet the PWFA “known limitation” definition is less difficult to achieve than the ADA “disability” definition.
- The PWFA adopts the interactive process (good faith discussion process between the parties) used in the ADA. However, it is used slightly differently. The PWFA requires an employer to engage in the interactive process to arrive at and determine a reasonable accommodation whereas the E.E.O.C. recommends and does not require employers to use the interactive process in determining a reasonable accommodation if the accommodation is obvious.
- As it relates to granting reasonable accommodations under the PWFA, it is unlawful to 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. The ADA does not have this same requirement.
- The PWFA adopts the ADA definitions of “reasonable accommodation” and “undue hardship.”
Effect on the Mental Health of a Qualified Employee
A key benefit from this law will be the positive impacts it will have on a pregnant individuals’ physical and mental health. During pregnancy, childbirth, or when having related medical conditions, work accommodations are routinely needed. This new law will allow pregnant individuals critical and necessary time off and/or temporary relief from essential functions of their job that will in turn help protect a pregnant individual’s physical and mental health.
With the passing of this new law, gaps that exist in other laws that provide pregnant individuals with limited accommodations and protections will be much better filled. And while this law expands a pregnant individual’s rights to accommodations for their physical wellbeing, it also expands a pregnant individual’s rights to accommodations for their mental health – a topic that does not always receive the attention it should. According to the article, “Does a Mother’s Mental Health Affect Pregnancy?“ 20% of pregnant people experience anxiety or depression during their pregnancy. Additionally, the article goes on to state that people who stop taking psychiatric medications for depression, bipolar disorder, and other mental health conditions during pregnancy may also experience increased or additional symptoms of their mental illness. Issues with mental health can also continue after childbirth. The CDC has found in its research that about 1 in 8 women with a recent live birth experience symptoms of postpartum depression. While there are tremendous physical changes occurring in an individual’s body during pregnancy, there are also tremendous mental health changes occurring. This law will likely allow qualified individuals to be much more properly accommodated in the workplace when dealing with mental health challenges related to pregnancy, childbirth, or related medical conditions.
PWFA and Your Integrated Disability Absence Management Plan
With the addition of this new law, covered employers should incorporate it into their Integrated Disability Absence Management (IDAM) programs. An IDAM program involves the administration of all programs in a centralized and integrated structure. It is a well thought out process that is employer specific, and once designed and implemented, creates a very efficient, effective, and coordinated business structure that addresses a variety of business needs such as risk management, employee health and wellbeing, policy coordination, safety initiatives, financials, return-to-work/stay-at-work programs, and absence, disability and claims’ management. As it relates to this new law, there are several things to consider, such as:
- Developing a PWFA policy;
- Defining the communication process to be used by employees when this type of leave is needed;
- Determining the specific contact points for proper case management of these types of accommodation requests;
- Reviewing return-to-work/stay-at-work programs to ensure the new leave is incorporated;
- Communicating the policy to staff and management; and
- Training supervision.
Building an IDAM program will help to ensure that all of your absence and disability related policies and programs are well coordinated and ultimately create an overall positive experience for your employees and provide an effective road map for them to follow.
To learn more about creating and implementing an effective integrated disability and absence management program, check out IEA’s Certified Professional in Disability Management (CPDM), a unique curriculum that provides tools and strategies to mitigate the impact of unplanned absences in the workplace.
Ann Kuzee, JD, MA, SPHR, SHRM-SCP, CPDM, CHPSE
Vice President Legal, U.S. Absence and Disability Management, TELUS Health
Ann Kuzee, attorney serves as TELUS Health’s (previously LifeWorks) primary legal representative for its U.S. Absence & Disability Management division. She holds a master’s degree of Human Resources Development, a bachelor’s degree in Accounting, and an associate’s degree in Marketing.
Ms. Kuzee’s professional certifications include the Certified Professional in Disability Management (CPDM) from IEA Training, Senior Professional in Human Resources from HRCI, and SHRM-SCP from the Society for Human Resource Management. She has also served as a subject matter expert for IEA and currently teaches its Foundations in Disability Management course.