Accommodations for pregnant workers have long been a murky area of compliance.
The Americans with Disabilities Act doesn’t consider pregnancy a covered disability, and the Pregnancy Discrimination Act doesn’t require accommodation (beyond those afforded to other similarly situated employees).
That gap drove Congress to pass the Pregnant Workers Fairness Act last month, cementing the right to workplace accommodations for pregnant workers. Now, protections for expecting talent are elevated beyond the Civil Rights Act’s Title VII and to the same level as the ADA. Here’s what employers need to know about the PWFA.
Who qualifies for the PWFA?
The legislation covers workers who can accomplish the necessary functions of their job, with or without accommodations.
The “law essentially stepped up the requirements that already existed under the ADA,” providing accommodations for “severe” pregnancy-related conditions and childbirth-related complications, Nonnie Shivers, an employment law attorney and shareholder at Ogletree, Deakins, Nash and Smoak, told HR Dive. Examples of this, Shivers explained, are conditions such as preeclampsia or morning sickness.
When does it take effect?
The law will take effect in six months — specifically, June 27, according to multiple employment law attorneys.
HR Dive reached out to the EEOC for comment on the timing of implementing regulations, but did not hear back by the time of publication.
What might pregnancy accommodations look like?
“It's not exactly like the ADA, but what an HR professional should know is that your rubric to apply essentially looks like the ADA now for pregnancy, childbirth and related medical conditions,” Shivers said.
Similar to the ADA, employers are required to give staff “reasonable accommodations,” unless they would cause “undue hardship” on the company.
Accommodations include additional chairs or stools, or break time to access medication, to deal with nausea or for rest, Shivers said. It’s also possible an employee could request an exception from certain strenuous or hazardous activities, she noted.
Exceptions from other policies may be required as well. Many workplaces enforce “clean desk” policies, either for workplace safety reasons or image-based reasons, such as hotel concierge desks. But the law may require employers to consider whether they can reasonably allow a pregnant employee to have drinks or food while they work.
It’s also likely that pumping or other lactation-related needs will be covered as “pregnancy-related medical conditions,” Shivers said.
Who enforces the law?
The EEOC has long weighed in on pregnancy and accommodations, but those positions didn’t have the weight of formal regulations. “Guidance is merely guidance,” Shivers said.
Per the legislation, the EEOC must publish PWFA regulations within a year.
What should HR keep in mind regarding implementation?
The HR profession may be well-prepared for this law, given its more than three decades of experience with disability accommodation. Still, there will be nuances to examine.
Throughout HR Dive’s conversation, Shivers emphasized that employers and HR managers should not jump to leave — unpaid or paid — as a primary form of accommodation for pregnant workers. That’s the same advice employment law attorneys often give when it comes to ADA accommodations, but pregnancy may necessarily shift the conversation around current leaves such as that guaranteed by the Family and Medical Leave Act.
Employers also may need to keep in mind that the PWFA ensures that the responsibility of determining proper accommodations belongs to the expecting employee and their doctor, Shivers said: “Paternalistic accommodations are officially codified as an absolute no-go.”
An example the attorney gave: If a dog catcher was expecting, it’s not within the animal control company’s purview to say, “We don't think that that's safe for you, because you could be bitten by an animal and that could affect your unborn child or the viability of your pregnancy. We can't give you vaccines, so we're going to go ahead and force you out on leave.”
Congress appears to have included that language in an attempt to avoid such instances that arose in the context of disability accommodation, and Shivers noted the provision’s uniqueness; “It's a rarity to have this type of language.”