One month after the Pregnant Workers Fairness Act (PWFA) took effect, Jackie Staple joins Fast Takes to walk through the new law, which requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or other related medical conditions, unless the accommodation will cause the employer an undue hardship.
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Courtney White: Hi, everyone. I am Courtney White, and this is Jackson Walker Fast Takes. The Pregnant Workers Fairness Act is a new law that requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or other related medical conditions, unless the accommodation will cause the employer an undue hardship. Today, my colleague Jackie Staple, a Houston Labor & Employment partner, will discuss this new act.
Welcome, Jackie. I’m happy to have you here today.
Jackie Staple: Thanks, Courtney. I’m happy to be here.
Courtney White: So, Jackie, can you just explain a couple of key provisions from the Pregnant Workers Fairness Act?
Jackie Staple: Of course, Courtney. The Pregnant Workers Fairness Act, like you mentioned, is really an accommodations law. It requires covered employers – which if you have 15 or more employees, you are a covered employer – to provide reasonable accommodations not only for pregnant employees and their pregnancies, but also for childbirth and related medical conditions.
And so, what do accommodations mean? Well, the Equal Employment Opportunity Commission, which is the federal agency that enforces this law, has provided some examples for us of what might be accommodations that you’ll now have to provide. These may be things like being able to sit or sit more frequently, being able to drink water or have breaks to do that, maybe even having flexible hours. If your employees wear uniforms, and you have a pregnant employee, you’ll have to provide them with an appropriately sized uniform. Pregnant employees may need extra time for bathroom breaks, eating, and resting. This can even cover childbirth and leave from the workplace to recover from childbirth. Before the Pregnant Workers Fairness Act, some of those things would have been covered by the Americans with Disabilities Act, but now it’s specifically covered on the Pregnant Workers Fairness Act. And then also, you may have to excuse an employee from certain strenuous activities.
I think the most interesting part of this law—I think the part that employers are going to struggle with is, prior to this, under the Americans with Disabilities Act, if an employee needed something and needed an accommodation for a disability, the employer didn’t have to remove what are called essential functions of their job, meaning, you know, what are your job duties, and the employer didn’t have to take away job duties to accommodate a disabled employee. Now, the Pregnant Workers Fairness Act, that’s really different. This law actually says if the employee cannot perform an essential function but can perform it in the near future, then you have to remove that job duty and basically temporarily suspend that job duty for the employee, unless you can show that doing that’s an undue hardship to the company. And so it’ll be really interesting to see what that means in the near future, because we all know pregnant workers can do their job. Maybe the pregnancy complicates them being able to do their job, but they know once they deliver, they can resume their job duties. I think that’s really the core of what this law is seeking to protect: It’s meant to keep pregnant workers and workers who are recovering from childbirth in the workforce so they don’t lose their jobs.
Now, the Pregnant Workers Fairness Act, that’s really different. This law actually says if the employee cannot perform an essential function but can perform it in the near future, then you have to remove that job duty and basically temporarily suspend that job duty for the employee, unless you can show that doing that’s an undue hardship to the company.
Courtney White: Thank you, Jackie, for that overview. What I’m really curious to see is what are some things that you think companies should consider? Because I’m anticipating that maybe some policies may change within companies due to this act.
Jackie Staple: Absolutely, Courtney. I think policies do need to be reviewed. Also, whoever handles leaves of absence and accommodation for your company – that could be your human resources professional, that could be managers, that could be maybe a third-party consultant that you use – whoever does that really needs to be apprised of this law, because it’s really going to affect how they administer those leaves and those accommodations. Companies are going to really have to think through in advance what types of accommodations can we provide when an employee becomes pregnant.
Having gone through pregnancy myself, there are certainly things in the first trimester, second trimester, I could do that became increasingly more difficult during the third trimester and as, you know, the delivery date approached. I think that employers would do well to look at their different jobs and say, okay, what sort of job duties can we maybe have other employees fill in on? Or if it’s a situation where you’re in an industry that requires a lot of face time from your employees like retail and hospitality, we may need to accommodate employees with additional breaks, additional time to sit down. How are we going to do that for our workforce as a whole, for this whole group of employees, that if one of them becomes pregnant or needs time off for childbirth or other related accommodations, how are we going to handle this? It’s always better to have a plan beforehand rather than when you’re right in the thick of it, then you’re faced with trying to figure things out really last minute.
Courtney White: I agree. I anticipate many companies may want to be proactive rather than reactive to this new act. Do you think that work-from-home policies may shift as a result of this act, as well?
Jackie Staple: 100%. The work from home to be has still been ongoing. There’s not a day that I look at online or at LinkedIn, that there’s not an article about it and which companies are requiring employees to come back. As we all learn during COVID, there are certain jobs that are more conducive to working remotely. And we saw that a lot of jobs can be done remotely. For those types of positions, it’s going to be harder to argue if you have an employee who’s pregnant that they can’t work remotely when they’ve shown they can do it in the past. Now, of course, there’s still the undue hardship and undue burden analysis to go through and to say having this position work remotely, essentially eliminating all the job functions, so the position really isn’t serving what it’s supposed to serve and do we really have to do that? But I think for a lot of jobs, even if the preference is to have employees in person, you really need to look at whether temporarily suspending in person attendance is a reasonable accommodation.
Courtney White: So, we know that this act took effect in June, but what I’m wondering is: Is the EEOC actually accepting charges under the Pregnant Workers Fairness Act?
Jackie Staple: It’s a great question, Courtney. And the answer is yes. The EEOC, like I mentioned, enforces this law and a lot of other different Civil Rights Acts. This particular law is actually part of Title VII, which the EEOC has long enforced that law. It is accepting charges. The key is that June 27, 2023, is the magic date when this law went into effect. So, those charges are going to have to relate to things that happened on June 27 or after, and the charges need to be filed on that date or after.
It will be interesting to see what the EEOC says about this act. The EEOC is charged with putting together regulations that will interpret the act, and it will help you know me advise companies and it will help companies comply with the Act. There are still a lot of questions that are out there. And certainly the charges that have no doubt started to come in will help the EEOC flush out what are those issues. I think the biggest one is going to be what does it mean for the employee to be able to perform the job functions in the near future? What does near mean? Does that mean after delivery? Does that mean in a few weeks? Are they protected for the duration of the pregnancy? All those questions will really get hashed out over the next couple of years, which, you know, that’s the case with any new law – you need some time to figure out how exactly this is working in practice.
Courtney White: Thank you so much, Jackie, for talking with me today. I anticipate we may need to do a follow-up episode once this act has been interpreted through the court system.
Jackie Staple: I think that’s right, Courtney. We will definitely do some follow up and keep everyone updated on what’s going on the Pregnant Workers Fairness Act.
The music is by Eve Searls.
The opinions expressed do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.
Jackie C. Staple is an attorney in the Labor & Employment section of Jackson Walker’s Houston office. She focuses on advising and counseling companies on employment law compliance and handling labor and employment transactional matters. Jackie has depth of experience drafting various employment, separation and release, and restrictive covenant agreements, as well as conducting due diligence of employment considerations in equity and asset transactions as a member of mergers and acquisitions deal teams. She is board certified in Labor and Employment Law by the Texas Board of Legal Specialization.