The Pregnancy Discrimination Act Was Amended. What Does This Mean for You?

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pregnant worker

Federal law prohibiting pregnancy discrimination was amended for the first time since 1978. Starting mid-2023, pregnant workers must now be afforded the same workplace accommodations that workers receive under federal disability protections.

Congress passed the Pregnant Workers Fairness Act (“PWFA”), which amends the federal Pregnancy Discrimination Act, as part of the gigantic omnibus package approved at the end of last year. The PWFA originated as H.R. 1065/S. 1486 and was a work-in-progress for over eleven years.

Why Did the Pregnancy Discrimination Act Need to Be Amended?

Before the PWFA’s passage, many workers were denied accommodations for pregnancy, childbirth, and related medical conditions. Employers were not required by federal law to provide such accommodations absent a disability. Employers could also risk liability if they accommodated pregnant workers but failed to accommodate non-pregnant ones.

The failure to accommodate caused ripple effects for pregnant workers, their families, and many employers. Many workers lost their jobs or had to take unpaid FMLA leave prior to delivery. Such workers were in very difficult positions after delivery because they often had limited or no job-protected leave remaining.

Being put on unpaid leave or simply let go because an employer was unable to accommodate them negatively impacted many women’s ability to provide for their families financially. Moreover, employers often lost talent they wanted to retain because they felt they could not accommodate workers seeking pregnancy accommodations.

I know first-hand the importance of the PWFA, after losing a lawsuit I worked on when I was a Trial Attorney for the Equal Employment Opportunity Commission (“EEOC”). The EEOC’s complaint alleged that Wal-Mart provided a light duty program to its employees on workers’ compensation, but refused to grant pregnant workers the same—and very necessary—accommodations.

Several pregnant employees at the big box chain were unable to do the heavy lifting or the continuous standing required for the job. They sought workplace accommodations but Wal-Mart denied them. These workers were forced to take positions with less pay and benefits or to take leave while pregnant, which often meant they had no leave left after they delivered their babies.

Unfortunately for the pregnant workers, the Seventh Circuit held that the federal Pregnancy Discrimination Act did not require Wal-Mart to grant reasonable accommodation requests, even though Wal-Mart provided accommodations to non-pregnant employees. The PWFA amendments now change this bad outcome for pregnant workers.

How Does the PWFA Change Federal Law?

The uneasy legal situation that endured for decades surrounding pregnancy and workplace accommodations led to broad support for the PWFA. Left-leaning women’s rights organizations as well as business interests, including the U.S. Chamber of Commerce, championed making an amendment to the Pregnancy Discrimination Act.

The PWFA amendments now require employers to give employees seeking accommodations for pregnancy, childbirth, and related medical conditions the same accommodations that they would make under the Americans with Disabilities Act (“ADA”). In other words, employers are now required to accommodate pregnant employees unless the accommodation would impose an undue hardship on the employer. For example, unless it posed an undue hardship, Wal-Mart would now likely be required to allow workers seeking pregnancy-related accommodations to take extra water breaks, use stools to occasionally sit, or allow for restrictions on how much an employee can lift, especially if it provided these accommodations to workers with disability-related restrictions.

The PWFA also prohibits employers from discriminating or retaliating against employees because they need or request accommodations. Further, the PWFA prohibits employers from forcing employees to take leave (especially unpaid leave) when a reasonable accommodation would allow the employee to continue to work.

When Does the PWFA Take Effect?

The PWFA will take effect on June 27, 2023. This leaves some time for employers to prepare their workplaces and employment policies, and for employees to understand their rights under the new law.

What Should Employers Do in Light of the New Law?

Employers need to update their policies and procedures, which can include employment handbooks. Employers should also educate staff that handle reasonable accommodation requests, such as human resources departments, so they treat pregnancy-related accommodation requests the same way they would handle disability accommodation requests.

Employers should also educate their workforce on their updated rights. A simple email with an explanation of the process for requesting can be helpful. Employers might also roll training on how to request pregnancy-related accommodations into other regular workplace trainings.

Just as important, employers should normalize asking for accommodations during pregnancy. Business owners desire productive and committed workers, and encouraging the use of accommodations will help them retain good talent while also complying with the law.

What Should Employees Do?

Employees who are in need of modifications to their work should make sure they seek accommodations before they resign from employment. As with other accommodation requests, employees should speak with their supervisor and/or their human resources department. They may need documentation from a medical provider to support their request.

What Should Medical Providers Do?

Medical providers should help patients with pregnancy-related work limitations seek accommodations that would allow them to continue to work, without the same fear that this will result in the worker being let go from work.

How Does the PWFA Change the Landscape in Illinois?

Not by much. The Illinois Human Rights Act (“IHRA”) already requires employers to provide reasonable accommodations to pregnant workers. Employees in Illinois already enjoyed greater protections than workers in many other states. The PWFA simply extends those protections to workers across the nation.