Understanding the Pregnant Workers Fairness Act: What You Need to Know

We’ve seen a lot of online chatter and news stories in the HR world about the PWFA. Up until now, CEDR has remained relatively quiet about it; the guidance we’ve been giving to our members already follows the guidance laid out in this federal law. However, we wanted to take some time to dive deeper into it. Whether you’re an office manager, practice owner, or any other HR professional, we hope this blog provides useful information about this new legislation. And for additional info check out Episode 502 of the "What The Hell Just Happened?!" podcast.

The PWFA introduces various measures to solidify safeguards for pregnancy in the workplace. We use the term "solidify" because the law essentially establishes what employers should have been practicing all along—unless they were willing to take the risk of facing a lawsuit for denying a pregnant employee some basic things like the ability to sit down and have access to water during the workday.

There are things in the law that weren’t technical requirements before, but when taking into account all the various laws and equities involved, there was really no question that these things already should’ve been happening.

Because of this, if you are a CEDR member, you did not receive any frantic messages from us telling you that there is a laundry list of things for you to change and take care of; as we stated above, our guidance aligns with these new federally required requirements. However, if you’re not a CEDR member and don’t have a CEDR handbook, there may be some things that you need to take some quick action on. This article is designed for everyone to be able to learn about these new obligations.


Does the PWFA apply to your business?




This is a federal law, so it applies in all 50 states. It only applies to employers with 15 or more employees, but please read on even if you are smaller. If you’re a smaller employer, while this law does not apply to you, a word of caution before moving along from this blog. Many state laws already have these requirements, and those laws apply to all employers in your state. Therefore, being smaller than 15 employees does not get you out of anything. This highlights the need for your employee handbook policies and training to include details that would let you know that you are subject to stricter laws, of all types.

Even if no law requires you to do anything discussed in this blog, keep in mind that if it looks like you’re unwilling to work with a pregnant employee, that can have an immediate detrimental effect on team morale. Very often, it’s worth it to take extra steps to help an employee even when you’re not required to do so. But it is also very handy to know where you can draw the line.


What’s so new and exciting about this law?

 


Two main things were already prohibited by existing federal laws and remain unchanged:

•Discrimination against an employee (or applicant!) based on their pregnancy

•Treating a pregnant employee any differently than another employee seeking similar work arrangements due to a medical condition.


The major thing that has changed is that employers now have to provide accommodations for an employee experiencing a “limitation” due to pregnancy. Previously, you were only legally obligated to provide accommodations if the employee had a pregnancy-related “disability.”

So basically, limitation vs. disability.

In some ways, this seems like semantics. But when it comes down to how these words are defined in the law (we won’t bore you with the details of that here), there can be a lot of gray areas and disagreement over whether something is a “limitation” or rises to the level of “disability.”

Plenty of employers have relied on their (or their lawyer’s) interpretation of that wording in deciding to deny an accommodation request, force an employee to go on leave early, or terminate a pregnant employee.. And a lot of those employers have landed themselves in litigation over it.

That, in a nutshell, is why this law is not a big deal to us here at CEDR. In our experience, splitting legal hairs and fighting against accommodating an employee is usually much more challenging and time-consuming than simply providing it to them. Again, we are not afraid to draw a line but don’t play the semantics game when it comes to helping our members navigate an employee request for some small changes to be made to enable them to do their job. Trying to work around a short period of morning sickness is a lot easier than trying to defend a pregnancy discrimination claim.

We could also see the PWFA coming from many miles away, based on expanding EEOC guidance for the past 18 years and the increase in claims being filed around pregnancy discrimination, so in our view, this firmly becoming part of the law was only a matter of time.


Pregnancy Accommodations

 


If your employee is experiencing a “limitation” due to pregnancy, you need to do your best to accommodate it in most cases.

For example, a pregnant employee may experience painful or potentially dangerous uterine contractions, leg pain, and swelling from standing for long periods, so they would need ready access to water and the ability to sit for an allotted amount of time throughout their shift.

Accommodation requests may also arise if a pregnant employee is experiencing severe morning sickness, sciatica, gestational diabetes, difficulty bending over, and more.

Here are some examples of accommodations that may need to be e extended to pregnant employees due to pregnancy-related limitations:

•The ability to sit or drink water: Employers may need to provide seating options and ensure access to drinking water for pregnant employees.

•Receive closer parking: Employers can allocate parking spaces closer to the workplace to reduce the physical strain on pregnant employees.

•Flexible hours: Employers may need to adjust work schedules to accommodate medical appointments or the physical needs of pregnant employees.

•Appropriately sized uniforms and safety apparel: Pregnant employees may require larger uniforms or safety gear to ensure comfort and safety.

•Additional break time: Pregnant employees may need extra breaks to visit the bathroom, eat, or rest during their shifts.

•Leave or time off for childbirth recovery: The PWFA acknowledges the need for time off to recover from childbirth, which employers should provide.

•Excused from strenuous or hazardous activities: Employers should ensure that pregnant employees are not exposed to strenuous physical activities or hazardous substances that could jeopardize their health or the fetus's health.


Remember, if you’re already a member of CEDR, this guidance is already in line with what we currently provide. If you’re not a member and are interested in becoming one, click here. We’ll create a customized employee handbook for you that follows not only this law but all other federal, state, and local laws that affect your practice.


Your Handbook Policies Could Get You Into Trouble




Our team of HR experts see a lot of handbooks that businesses are using before they start working with CEDR. There are many businesses out there right now that have policies in place that violate the PWFA and related laws.

If you don’t have a CEDR handbook and have any policies like these, it’s time for an update:

•Pregnant employees are not permitted to work around x-rays or nitrous.

•Employees must seek written approval from their doctor that they are able to continue working during their pregnancy.

•Employees must notify the manager as soon as they learn they are pregnant.

•Employees must provide a medical certification confirming pregnancy.

•Pregnant employees who are unable to work their scheduled hours will be put on leave until they are able to return to their normal schedule.

•Employees must be 100% cleared for work without limitations before returning to work after a pregnancy leave.

•Pregnant employees will be reassigned to light-duty work.

•Pregnant employees experiencing morning sickness may be moved to part-time status at management’s discretion.

•Pregnant employees are responsible for purchasing their own maternity-sized scrubs.


If any of these policies sound familiar, reach out to CEDR for help. Don’t delete or revise policies in a panic; find something new online, or ask a friend to send you what they have. We can review your policies and let you know if they’re problematic.


Train Your Management Team




Make sure you are also educating each of your supervisors on pregnancy discrimination laws so they don’t inadvertently land you in hot water. Here are some things you may want to talk to your management team about:

•Probably the most prominent, never screen out candidates applying to your business simply because they are pregnant or respond negatively when a new hire tells you they’re pregnant.

•When a pregnant employee is asking for accommodations, don't ask for a doctor’s note if it’s not necessary. If there’s no reason to question what the employee is saying, and it’s pretty obvious what you can do to accommodate them, there’s no need to put them through a lengthy medical certification process.

•Ensure you are making reasonable accommodations even if the employee asking is not disabled.

•Don’t tell an employee they need to go on leave early due to pregnancy limitations. This should be a last resort when there’s no way to provide accommodation.

•Further, always engage in the interactive process when an employee asks for accommodations rather than jumping to conclusions that you cannot accommodate them. (For example, saying no right away when someone asks for extra breaks if you are short-staffed).



Conclusion




When there are federal changes to employment law, it's natural for employers to panic and worry that they have to go through and change everything happening within their practice. Fortunately, CEDR members don’t have to worry about this. This law was a long time coming and falls in line with general guidance that CEDR has already been giving surrounding pregnant employees in the workplace.

If you’re not a CEDR member and you are feeling some of that panic or have more questions, reach out to us for help.

Jul 25, 2023

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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