From mass layoffs to emerging technologies, an increasing number of topics are fueling compliance concerns from today’s HR leaders—and, starting this week, they have another area to focus on: pregnancy discrimination.
The Pregnant Workers Fairness Act went into effect on June 27, requiring that employers provide “reasonable accommodations” to pregnant workers from pregnancy through the postpartum period, including time off to recover—unless such accommodations would lead to an “undue hardship” on the part of the employer.
According to Leslie Silva, a partner in the Albany, N.Y., office of Tully Rinckey who practices family/matrimonial and education law, the biggest change is that the new law undoes a previous requirement that employees must prove they should be accommodated. Instead, the onus now is on employers to work in good faith with workers to provide those accommodations.
Silva offers insights on how employers are affected by the PWFA, along with some basic ways HR leaders can help their organizations meet the law’s requirements:
HRE: Under the new law, what can be considered an undue hardship? In other words, what has changed from previous law in this regard?
Silva: This law provides a new cause of action separate and apart from existing actions under Title VII of The Civil Rights Act of 1964 and the Americans with Disabilities Act. Each of those existing laws have different purposes and protections. Title VII protects from discrimination, and the ADA only protects workers who have a medical complication from pregnancy, but does not classify pregnancy as a disability—thereby limiting its ability to provide relief to employees. The new law expands protections and is designed to provide reasonable accommodations to individuals with known limitations related to pregnancy, childbirth or related medical conditions.
HRE: What other pregnancy-protection laws are already in effect?
Silva: Some federal laws—Title VII of the Civil Rights Act of 1964 and the ADA—protect pregnant employees. Also, the Family and Medical Leave Act of 1993 provided some employees with unpaid, job-protected leave for certain family and medical reasons. Earlier this year, the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act went into effect. This law requires certain employers to provide nursing mothers with accommodations, such as break times and private spaces, for a period of up to one year following the birth of their child.
HRE: How can employers fundamentally ensure they are in compliance with the PWFA?
Silva: Employers should carefully weigh the reasonableness of accommodations before denying an employee their request for same. In previously issued federal case law, pregnancy accommodations were reviewed under a different legal standard. Also, the standard was whether or not the denial of accommodations presented an undue burden on the employee. The PWFA shifts the standard so that the denial of an accommodation must present an undue hardship for the employer, seemingly requiring employers to prove those burdens in litigation.
Remember to discuss accommodations with employees prior to instituting them. You should always document a discussion with a confirming correspondence or memorandum. Next, consider all possible accommodations prior to an employee taking leave in order to avoid potential litigation in the future. The financial resources of an employer could come under scrutiny—in what is expected to be a case-by-case analysis—in determining reasonableness under the PWFA. This is something employers should consider at the onset of an accommodation request.
Also, the advisory for the PWFA only applies to accommodations, and does not replace federal, state or local laws that are more protective of workers affected by pregnancy, childbirth or related medical conditions. In fact, this is an expansion of the federal law only and applies to certain employers that may not be subject to state or local laws.
HRE: How does the national picture shape up for state-level pregnancy protections?
PWFA is a federal law, enacted by the US Congress. As of April 2023, 31 states had some type of pregnancy protection legislation in place. Some of the laws provide greater protections than this new federal law. For example, New York enacted a similar law in 2016 [the protections regarding pregnancy can be found here].