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► Preparing To Comply With The PUMP Act And PWFA
Pregnant workers are currently protected under various acts including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act of 1993 (FMLA), and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP). Even with all of these Acts, gaps still exist in the protections for pregnant employees. On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) goes into effect and attempts to fill some of these gaps.
What the PWFA says
Under the PWFA, a covered employer is any private or public employee with at least 15 employees.
This new law requires employers to do the following:
- Make reasonable accommodations to adapt to the known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless such accommodation would be an undue hardship on the operation of the business. Known limitations are the mental or physical conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee has communicated to the employer. The condition doesn’t have to meet the definition of a disability to qualify as a known limitation.
- Determine the reasonable accommodation through an interactive process with the employee. It’s unlawful under the Act for an employer to require a qualified employee to accept an accommodation without working together to determine if the limitation can be reasonably adjusted.
- Not deny employment opportunities based on the need to make reasonable accommodations to the known limitations of pregnancy, childbirth, or related medical conditions of a qualified employee.
- Not require a qualified employee to take leave if another reasonable accommodation is available. Requiring a qualified employee to take leave, whether paid or unpaid, instead of providing an available reasonable accommodation is unlawful under the Act.
- Not take adverse action in the terms, conditions, or privileges of employment against a qualified employee because they requested or used a reasonable accommodation to the known limitations of pregnancy, childbirth, or related medical conditions.
Examples of reasonable accommodations under the PWFA
A reasonable accommodation is a change to the work environment or the way things are usually done at work. Some examples of a reasonable accommodation include:
- The ability to sit or drink water;
- Receiving a closer parking spot;
- Providing flexible hours;
- Providing appropriately sized uniforms and safety apparel;
- Providing additional break time to use the bathroom, eat, and rest;
- The ability to take leave to recover from childbirth; and
- Excusal from strenuous activities or activities that involve exposure to compounds not safe for pregnancy.
PWFA and other laws protecting pregnant workers
Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against an employee based on pregnancy, childbirth, or related medical conditions.
The ADA protects employees from discrimination based on a disability. While pregnancy isn’t a disability under the ADA, pregnancy-related conditions may be considered disabilities if they substantially limit one or more major life activities such as walking, standing, or lifting, or affect major bodily functions such as musculoskeletal, neurological, cardiovascular, circulator, endocrine, or reproductive functions.
If a pregnancy-related condition is determined to be so severe it affects major life activities or major bodily functions, it may be a disability under the ADA, and you would be required to provide the employee with reasonable accommodations.
The FMLA allocates 12 workweeks of leave per year for the birth of a child and to care for a newborn. The leave is unpaid but provides job protection for the employee that they will return under the same terms and conditions as if they had not taken leave.
Finally, the PUMP act requires employers to provide reasonable break time for an employee to express breast milk for a nursing child every time the employee requires it. You must provide a place to pump at work, other than a bathroom, shielded from view and free from intrusion from coworkers and the public.
Among the other laws protecting pregnant workers, the PWFA broadens pregnant workers’ right to accommodations in the workplace. Under the PWFA, a pregnant worker is entitled to accommodations for conditions related to, arising out of, or affected by pregnancy. The accommodations must be provided regardless of whether the condition rises to the point of disability. Thus, the PWFA offers broader protections for pregnant workers and entitles them to reasonable accommodations for their work.
Recommendations for employers
Before the PWFA goes into effect in June, you should develop an interactive process to determine the reasonable accommodations available to qualified employees under the PWFA. Although an accommodation doesn’t have to be made if it would cause an undue hardship to the operation of the business, it’s important to keep an open mind during the interactive process.
By Grace Fletcher. Ms. Fletcher is an attorney with Mitchell Williams in Little Rock and is a contributing writer for the Arkansas Employment Law Letter.
[5/2023]
