The Pregnant Workers Fairness Act (“PWFA”) was passed as part of the December 29, 2022 Consolidated Appropriations Act, a new federal law that went into effect on June 27, 2023. This federal legislation requires covered employers—both public and private sector employers with fifteen (15) or more employees—to provide reasonable accommodation to qualified employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions.

While pregnant workers previously received employment-related protections under other federal statutes, including Title VII of the Civil Rights Act of 1964, as amended by the 1978 Pregnancy Discrimination Act (“PDA”), the Family and Medical Leave Act (“FMLA”), and the Americans with Disabilities Act (“ADA”), the PWFA seeks to fill the gaps between these federal laws with the goal of providing greater protection to pregnant and postpartum employees.

While this new federal law is being hailed as a “game changer” for otherwise healthy pregnant workers with temporary pregnancy-related limitations who want to keep working without endangering their health and pregnancy, the PWFA’s effects may not be felt here in the Pacific Northwest where we already have comprehensive pregnancy accommodation statutes on the books. Oregon enacted the Employer Accommodation for Pregnancy Act as of January 1, 2020; Washington’s workplace pregnancy accommodation law, The Healthy Starts Act, has been in effect since July 23, 2017.

What Protection Does the PWFA Provide?

Specifically, the PWFA removes hurdles for pregnant or postpartum workers who need reasonable accommodations at work. Building upon the requirements of the ADA, the PWFA requires employers to provide access to reasonable accommodations for employees and qualified applicants with “known limitations related to pregnancy, childbirth, or related medical conditions.” Unlike the ADA, the Act does not require proof of a pregnancy-related disability or the need for the pregnant employee to identify similarly situated non-pregnant employees who received similar accommodations at work.

The PWFA obligates employers to provide reasonable accommodations to people with temporary limitations on their ability to perform the essential functions of their jobs based on a physical or mental condition related to pregnancy, childbirth, or related medical conditions, so long as providing such accommodation does not impose an undue hardship.

Conveniently, the PWFA uses the same meaning of “reasonable accommodation” and “undue hardship” as the ADA, including the interactive process that should typically be used to determine appropriate reasonable accommodations.

The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions, and PWFA only applies to accommodations, not claims of discrimination.

Who Is Protected Under the PWFA?

Employees and applicants who have a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” are afforded employment-related protection under the PWFA. However, the employee or applicant must have made the employer aware of their condition(s) in order to receive accommodation under the Act.

Additionally, the employee or applicant must be qualified to perform essential functions of the job, with or without the accommodation. Specifically, the Act requires qualified employees or applicants to show that they have a temporary inability to perform the job without reasonable accommodation and that they will be able to perform the essential functions of the job in the near future.

What Might Be Considered a “Reasonable Accommodation” Under the PWFA?

The ADA, and so too the PWFA, defines reasonable accommodation as “a modification or adjustment to a job or the work environment that enables an employee with a disability an equal opportunity to successfully perform a job.” The Equal Employment Opportunity Commission (“EEOC”) has not issued a comprehensive list of regulations and examples of reasonable accommodations under the PWFA. However, the House Committee on Education and Labor has provided examples of what reasonable accommodations are contemplated by the Act which include: the ability to sit; the ability to drink water; access to closer parking; flexibility in work hours; appropriately sized uniforms, and safety apparel; additional break time allowances for bathroom use, eating, or resting; excusal from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

As with the ADA, accommodations resulting in an undue hardship would not be required, though proving undue hardship – “any activity requiring significant difficulty or expense” – is a difficult standard to meet. The Act also provides that an employer cannot require the employee to take a paid or unpaid leave of absence if another reasonable accommodation could be provided. Of course, that does not mean the employee gets the accommodation of their choice.

The statute provides a defense to damages for employers that, in good faith, work to identify alternative accommodations that are equally effective and do not cause undue hardship.

What Employers Should Do Next

As mentioned above, providing reasonable accommodations for pregnant workers is not new to Oregon and Washington employers. Nonetheless, covered employers are advised to review, and if necessary, update employee handbooks and relevant policies to ensure compliance with the PWFA. Covered employers should also ensure that HR professionals and front-line managers are prepared to respond to requests for reasonable accommodation contemplated by the Act.

Employers’ Human Resources teams should create a process to follow when employees request an accommodation due to pregnancy-related limitations. The process should be similar to the ADA process and include an interactive process to arrive at a reasonable accommodation.

The EEOC will publish its Notice of Proposed Rule Making for the PWFA in the Federal Register on Friday, August 11, 2023, for public comment. The comment period will last for sixty (60) days. In the meantime, the EEOC started accepting charges under the PWFA on June 27, 2023. The Act applies if the situation complained about happened on June 27, 2023, or later. EEOC will continue to review discrimination claims under Title VII.