Pregnant Workers Fairness Act (PWFA), 2023

The Pregnant Workers Fairness Act (PWFA), which guarantees the privileges and welfare of expectant individuals, emerges as a noteworthy advancement during a period when inclusivity and fairness in the labor force hold great importance. It encompasses the imperative factors of offering sensible adaptations, shielding them against prejudice, and extending support as they embrace the role of mothers. This revolutionary legislation aims to confront the obstacles faced by numerous pregnant workers. Most pregnant employees persist in their employment until the last month of their pregnancy.

However, this fresh legislation enhances their rights, ensuring that they are no longer compelled to make the difficult decision of prioritizing either a healthy pregnancy and a secure postpartum recovery or their income. Within this comprehensive piece of writing, we will delve into the primary elements of the Pregnant Workers Fairness Act, PWFA, elucidate its impact on both employees and employers and explore the reasons why this law plays a crucial role in fostering a workplace that upholds equal opportunities and embraces diversity.

Come and be a part of our exploration into the positive impact that the Pregnant Workers Fairness Act can bring to the lives of countless individuals, empowering women who are expecting and nurturing a future of equality within the labor force.

What is Pregnant Workers Fairness Act ?

• The Pregnant Workers Fairness Act, a piece of legislation in the United States, has the goal of putting an end to discrimination and ensuring that pregnant employees, as well as those with medical conditions related to pregnancy or childbirth, receive the necessary accommodations in the workplace.
• This rule applies to employers who have a workforce of fifteen or more individuals.
• This regulation, which has been designated as Division II, was included in the Consolidated Appropriations Act of 2023. Congress passed this act on December 27, 2022, and it was signed by President Joe Biden on December 29, 2022.
• As of June 27, 2023, the Pregnant Workers Fairness Act is now in effect.
• After June 27, 2023, the Equal Employment Opportunity Commission (EEOC) will examine reports submitted concerning the PWFA (in cases where the violation took place after June 27, 2023). If deemed necessary, they will also consider complaints under the Americans with Disabilities Act (ADA) and/or Title VII. These concerns revolve around providing suitable provisions for employees affected by pregnancy, childbirth, or related health conditions.

Definitions

Pregnant Workers Fairness Act – SEC. 2000gg. [Section 102]

As under this section-

1. The term “Commission” means the Equal Employment Opportunity Commission.
2. The term “covered entity”-
   • has the meaning given the term “respondent” in section 2000e(n) of this title [section 701(n) of the Civil Rights Act of 1964]; and
   • includes-
     •  an employer, which means a person engaged in industry affecting commerce who has 15 or more employees as defined in section 2000e(b) of this title [section 701(b) of the Civil Rights Act of 1964]
     •  an employing office, as defined in section 1301 of Title 2 [section 101 of the Congressional Accountability Act of 1995] and section 411(c) of title 3 [United States Code]
     • an entity employing a State employee described in section2000e-16c(a) of this title [section 304(a) of the Government Employee Rights Act of 1991]; and
     •  an entity to which section 2000e-16(a) of this title applies [section 717(a) of the Civil Rights Act of 1964];
3. The term “employee” mean-
   • an employee (including an applicant), as defined in section 2000e(f) of this title [section 701(f) of the Civil Rights Act of 1964]
   • a covered employee (including an applicant), as defined in section 1301 of Title 2 [section 101 of the Congressional Accountability Act of 1995], and an individual described in section 1311(d) of Title 2 [section 201(d) of the Congressional Accountability Act of 1995]
   • a covered employee (including an applicant), as defined in section 411(c) of Title 3 [United States Code
   • a State employee (including an applicant) described in section 2000e-16c(a) of this title [section 304(a) of the Government Employee Rights Act of 1991]
   • an employee (including an applicant) to which section 2000e-16(a) of this title [section 717(a) of the Civil Rights Act of 1964]applies
4. The term “recognized restriction” pertains to a bodily or cognitive state linked to, ensuing from, or emerging from gestation, labor, or associated medicinal circumstances that the worker or the representative of the worker has divulged to the employer, regardless of whether or not such state meets the description of incapacity stated in segment 12102 of this title [segment 3 of the Americans with Disabilities Act of 1990].
5.  The term “person” has the meaning given such term in section 2000e(a)  of this title [section 701(a) of the Civil Rights Act of 1964]
6. The term “qualified employee” means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if-
   • any inability to perform an essential function is for a temporary period
   • the essential function could be performed in the near future; and
   • the inability to perform the essential function can be reasonably accommodated; and
7.  The terms “reasonable accommodation” and “undue hardship” have the meanings given such terms in section 12111 of this title [section 101 of the Americans with Disabilities Act of 1990] and shall be construed as such terms are construed under such Act and as set forth in the regulations required by this division, including with regard to the interactive process that will typically be used to determine an appropriate reasonable accommodation.

Background

• In the House of Representatives, on May 8th, 2012, Representative Jerry Nadler from New York, a member of the Democratic Party, introduced the initial draft of the Pregnant Workers Fairness Act. This legislative proposal was a direct result of the op-ed article titled “Pregnant, and Excluded from Employment” published in the New York Times in January 2012.
• In 2014, the Senate Committee on Health, Education, Labor, and Pensions held a gathering titled “Economic Security for Working Women: A Roundtable Discussion.” This event aimed to address the importance of enacting the Pregnant Workers Fairness Act. Various individuals offered their testimonies, emphasizing the necessity of this legislation.
• Fast forward to 2019, and the House of Representatives Education & Labor Committee decided to hold its first-ever hearing regarding the Pregnant Workers Fairness Act. Titled “Long Overdue: Exploring the Pregnant Workers Fairness Act,” the hearing featured notable witnesses, including Congressman Jerry Nadler, Michelle Durham, a mother from Alabama who experienced the rejection of her pregnancy-related accommodations, Iris Wilbur, a former vice president of Greater Louisville Inc., Dina Bakst, co-founder and co-president of A Better Balance, and Ellen McLaughlin, a partner at Seyfarth Shaw LLP.
• In September 2020, the House of Representatives granted its approval to the legislation, with a solid majority of 329-73 votes. Moving forward to March 2021, the House of Representatives Education & Labour Committee organized a hearing, focusing on the imperative topic of “Fighting for Fairness: Scrutinizing Legislation to Confront Workplace Discrimination,” specifically highlighting the Pregnant Workers Fairness Act along with other laws pertinent to the workplace. Subsequently, in May 2021, the House of Representatives provided their stamp of approval to the measure by a considerable margin of 315 to 101 votes. The bill then made its way to the Senate Committee on Health, Education, Labor, and Pensions, where in August 2021, it received an overwhelmingly positive endorsement for discharge from committee by an impressive count of 19-2 votes.
• The United Appropriations Act, 2023, passed by the legislative body on December 27, 2022, encompassed the textual content of the legislation following its insertion by the Senate.

Empowering Pregnant Workers: An Overview of the PWFA

• Businesses that have a workforce of 15 or more individuals are required to comply with the legislation, which encompasses not only workers who are paid by the hour but also includes provisions for pregnant employees. Additionally, Pregnant Workers Fairness Act regulation extends its protection to individuals dealing with “associated medical circumstances,” which may include women undergoing fertility therapies, those experiencing postpartum depression, as well as individuals who have undergone an abortion or experienced the tragic loss of a pregnancy.
• To meet the needs of individuals who are required to remain on their feet for extended periods, it may be possible to provide chairs or stools. As stated by Liz Morris, the deputy director of the Centre for Work Life Law at the University of California Hastings College of the Law, these accommodations may also involve increased opportunities for using the restroom, temporary reassignments to lower-responsibility or less hazardous roles, flexible schedules to accommodate morning sickness, and even time off for prenatal checkups and postpartum care. Based on the specific requirements of an employee, the phrase “reasonable accommodations” can encompass a variety of scenarios under the recent regulation as long as it does not place an excessively burdensome strain on the company.
• According to Dr. Dawnette Lewis, the head of the Centre for Maternal Health at Northwell Health, these modifications have the potential to greatly improve the well-being of both the mother and the baby. For instance, a worker experiencing gestational diabetes during pregnancy may need additional opportunities to monitor her glucose levels or administer insulin shots. However, by making these adjustments, she can still fulfill her work responsibilities while prioritizing her health, explained the specialist.
• Working in challenging environments involves various physical demands, such as the requirement to remain on one’s feet for extended periods exceeding three hours, frequent exposure to harmful pollutants, and the necessity to work night shifts. The American College of Obstetricians and Gynecologists highlights that expectant employees subjected to specific circumstances face increased vulnerability to complications, including the likelihood of experiencing miscarriages and giving birth prematurely.

Provisions under Pregnant Workers Fairness Act

• The proposed legislation outlines a list of employment actions that would be considered unlawful under Pregnant Workers Fairness Act.
• These actions include not making reasonable efforts to accommodate the known limitations of certain workers, as long as doing so would not overly burden the business operations.
• Additionally, it would be unlawful to deny job opportunities to individuals who require reasonable accommodations, as long as qualified employees are available.
• Furthermore, employees should not be forced to take time off, either paid or unpaid, if another reasonable accommodation can be provided.
• It is also unacceptable to compel an employee with restrictions to accept an accommodation other than one that has been determined through an interactive process as reasonable.
• Finally, any adverse actions taken against a qualified employee that affect their employment terms, conditions, or privileges would be deemed as discriminatory and unlawful.

Requesting Accommodations: Navigating the Conversation with Your Employer

• Dr. Lewis explains that pregnant individuals may encounter challenges when it comes to asking for modifications in their work to prevent appearing incompetent or overly reliant on others. Nonetheless, she strongly emphasizes the importance of supporting pregnant women in preserving their well-being during pregnancy and ensuring the birth of healthy babies. By doing so, we would not only benefit the patients but also contribute significantly to the betterment of our society.
• Ms. Morris advised ensuring that your supervisor comprehends that the adjustment is only temporary and imperative because of pregnancy or childbirth. While it is now the employer’s duty to find a resolution to the pregnant employee’s requests, she suggested exhibiting the feasibility of your accommodation to your boss. One way to do this is by mentioning that you have requested assistance from a colleague, for instance, saying, “I’ve sought help from my coworker.” It is also important to consistently reaffirm your commitment to your role.
• As per the insights shared by Ms. Morris, it is essential for both the employer and the employee to collaborate and devise an innovative resolution when confronted with an accommodation request that places an excessively burdensome strain on the business. In case all other attempts prove unsuccessful, the employee has the option to file a complaint with the E.E.O.C., according to her.

Some other federal laws that may apply to pregnant workers

Laws other than Pregnant Workers Fairness Act that apply to workers affected by pregnancy, childbirth, or related medical conditions, include:

1.Title VII (enforced by the EEOC)

• Safeguards workers against prejudice stemming from maternity, labor, or associated health issues. Additionally, it mandates that employers providing coverage treat employees influenced by pregnancy, labor, or related medical conditions fairly, in alignment with other workers facing similar work-related constraints.
• Additionally, it mandates that employers providing coverage treat employees influenced by pregnancy, labor, or related medical conditions fairly, in alignment with other workers facing similar work-related constraints.

2. The ADA (enforced by the EEOC)

• The main objective is to guarantee that an employee does not experience any form of discrimination based on their disability.
• Additionally, it mandates that employers who fall under this category must provide reasonable adjustments for individuals with disabilities, as long as it does not cause significant difficulties for the employer.
• It is important to note that the Americans with Disabilities Act (ADA) does not consider pregnancy as a disability. However, certain medical conditions linked to pregnancy might be considered as such.

3. The Family and Medical Leave Act of 1993 ensures that eligible workers have the right to take time off from work without pay for certain family and medical-related purposes. This law is upheld by the U.S. Department of Labor.

4. The PUMP Act (Expanding Vital Maternal Entitlements for Nursing Mothers Act), which enhances workplace privileges for employees to articulate breast milk while working, is enforced by the U.S. Department of Labor.