In six (6) days the federal Pregnant Workers Fairness Act will become effective which will create new obligations (and new liability) for Employers with 15 or more employees.

Pregnancy itself is not a disability under the ADA although medical conditions related to pregnancy and child birth might be. The point is that the ADA does not automatically entitle a pregnant employee to a reasonable accommodation. Leave under the FMLA for pregnancy related reasons is not required if the Employer has fewer than 50 employees; if the pregnant employee had not worked for the Employer for at least one (1) year and for 1250 hours in the current FMLA year; or, if the pregnant worker otherwise qualified for FMLA leave but already had used all available leave.

The PWFA changes this. First, Employers with 15 or more employees are covered by this Act. Second, the Act requires all covered Employers to provide “reasonable accommodations” to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation would cause the employer an “undue hardship,” which is defined as a significant difficulty or expense.

A non-exclusive list of reasonable accommodations would include:

• The ability to sit or to drink water
• Parking closer to the employee’s work area
• Work flexible hours
• Receive appropriately sized uniforms and safety apparel
• Receive additional break time to use the bathroom, to eat, or to rest
• Take leave or time off to recover from childbirth
• Be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy

Obviously, whether any of these or other possible accommodations are required must be examined in context.

The important message to all of our Employer clients is that once a pregnant worker requests a pregnancy accommodation, the Employer must engage in the interactive process to determine the proper accommodation. An employer may not impose an accommodation on a pregnant employee in the absence of discussion about the accommodation or require an employee to take leave if another reasonable accommodation is available. Covered Employers may not deny a job or any other employment opportunity to a covered employee or applicant based on the person’s need for a reasonable accommodation related to pregnancy; retaliate against any person for reporting or opposing unlawful discrimination under the Act or participating in a proceeding or investigation under the Act.

Some states and municipalities already have laws or ordinances that provide protections for pregnant workers and those laws and ordinances might apply to Employers with fewer than 15 employees. The PWFA does not pre-empt those laws. Regionally, Pennsylvania, Delaware, and New York require covered Employers only to accord to pregnant workers the same benefits they accord to other similar temporary disabilities. Maryland and New Jersey require covered Employers to make reasonable accommodation to pregnant employees who have work-related limitations due to pregnancy. Under Philadelphia’s Fair Practice Ordinance most Employers must make reasonable accommodations for employees during pregnancy, childbirth, and related medical conditions.

For more information on the Pregnant Workers Fairness Act, kindly reach out to Bob Small at rsmall@regerlaw.com.