CLIENT ALERT: Pregnant Workers Fairness Act Takes Effect on June 27: A Refresher on Employers' Obligations to Pregnant and Nursing Employees

On June 27, 2023, the Pregnant Workers Fairness Act (the “PWFA”) went into effect, imposing federal accommodation requirements on employers with 15 or more employees.  Although Delaware state law already demands the same treatment as the new PWFA for employers with 4 or more employees, the implementation of the PWFA functions as an important reminder to ensure proper compliance with both federal and Delaware state law.

Requirements Under the PWFA

Complying with the PWFA requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions.  

In addition, the PWFA prohibits employers from:

• Requiring employees “affected by pregnancy, childbirth, or related medical conditions” to accept an accommodation other than a “reasonable accommodation;”
• Denying employment opportunities to an employee “if such denial is based on the need” of the employer “to make reasonable accommodations;”
• Requiring an employee “to take leave, whether paid or unpaid, if another reasonable accommodation can be provided;”
• Taking “adverse actions” against an employee “in terms, conditions, or privileges . . . on account of the employee requesting or using a reasonable accommodation;” and
• Retaliating against an employee who has brought an action under the PWFA.

Reasonable Accommodation

The definition of a “reasonable accommodation” in the PWFA reflects the definition in the Americans with Disabilities Act (“ADA”), explaining that a reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process.  The modification is meant to enable an individual to both have an equal opportunity to get a job and be successful in their performance of that job.  

In a recent report on the PWFA, the House Committee on Education and Labor offered a non-exhaustive list of examples of possible “reasonable accommodations,” including: additional break time, closer parking locations, flexible hours, permission to avoid strenuous activities, or appropriately sized work apparel.

However, the employer is not required to provide accommodations that cause the employer an “undue hardship.” The definition of “undue hardship” also reflects the definition in the ADA, including an “action requiring significant difficulty or expense [to the employer], when considered in light of the factors set forth….”  A few of these factors include the “nature and cost of the accommodation,” the “overall financial resources” of the facility involved with the reasonable accommodation, the size of the employer “with respect to number of its employees,” and the “type of operations” of the employer, among others.   

Interactive Process

When arriving at a “reasonable accommodation” for an employee, the PWFA encourages an “interactive process” between the employer and the employee.  The employer is not required to give an employee the exact accommodation asked for, and the employer cannot force the employee to accept an accommodation that was not agreed upon through the interactive process.  

Covered Employers and Employees

The PWFA applies to public or private employers with at least 15 employees. However, under Delaware state law, the threshold is set at 4 or more employees.

The PWFA applies to employees who “have known limitations related to pregnancy, childbirth, or related medical conditions.”  The “known limitation” definition can include “physical or mental condition[s]” related to the pregnancy or childbirth.

Other Laws Applying to Pregnant Workers

In addition to the PWFA and current Delaware state law, several other federal laws provide pregnancy-related protections to employees, including:

• The Pregnancy Discrimination Act protects employees from discrimination based on pregnancy, childbirth, or related medical conditions, and entitles affected employees to the same treatment as other workers in their ability or inability to work.
• The Americans with Disability Act (“ADA”) protects employees from discrimination based on disability. Although pregnancy is not a disability under the ADA, pregnancy-related impairments may still entitle an employee to protections if the impairment substantially limits one or more major life activity. Examples include impairments that affect the employee’s ability to walk, stand, lift, or perform other bodily functions.
• The Fair Labor Standards Act entitles employees to receive reasonable break time to express breast milk for a nursing child up to one year after the child’s birth. This Act requires employers to provide “a place, other than a bathroom, that is shielded from view and free from intrusion” for the employee to express breast milk.

Conclusion

The enactment of the PWFA functions as a useful reminder for compliance with both federal and state laws involving pregnant employees.  If you have questions about the PWFA, please contact the Labor and Employment Team at Potter Anderson (Jennifer Gimler Brady, Kathleen Furey McDonough, and Jennifer Penberthy Buckley).

About Potter Anderson

Potter Anderson & Corroon LLP is one of the largest and most highly regarded Delaware law firms, providing legal services to regional, national, and international clients. With more than 100 attorneys, the firm’s practice is centered on corporate law, corporate litigation, intellectual property, commercial litigation, bankruptcy, labor and employment, and real estate.