In December 2022, Congress passed the Pregnant Workers Fairness Act (PWFA), which will take effect in June 2023.

Purpose

The purpose of the PWFA is “to eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.”

Who is covered?

Employers, as defined by Title VII (generally, employers with 15 for more), or any agent thereof, subject to the same exceptions as Title VII.

Employees, as defined by Title VII (including applicants).

Generally, employers who are subject to Title VII of the Civil Rights Act of 1964 and their employees and applicants are covered.

Employer Obligations

Under the PWFA, Employers are prohibited from:

• Refusing to provide reasonable accommodations;
• Requiring the employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process;
• Denying employment opportunities based on the employee's need for reasonable accommodation;
• Requiring the employee to take leave (paid or unpaid) if another reasonable accommodation can be provided; or
• Taking adverse action in the terms, conditions, or privileges of employment because of the employee’s request for or use of a reasonable accommodation.

How is the PWFA different from the Pregnancy Discrimination Act or current Hawaii law?

One of the most significant differences is that the PWFA protects “known limitations” (i.e., physical or mental conditions) related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that are communicated to the employer.

Employers should note that “known limitations” do not have to rise to the definition of “disability” under the Americans with Disabilities Act (ADA) to trigger the above obligations.

Additionally, the PWFA clarifies that an employee (or applicant) shall be considered “qualified” even if they are unable to perform essential functions of the job if:

• Such inability is temporary;
• The essential function could be performed in the near future; and
• The inability can be reasonably accommodated.

Reasonable Accommodation

“Reasonable accommodation” and “undue hardship” have the same meaning as under the ADA, and will be analyzed accordingly. This means employers may also be obligated to engage in the interactive process when they become aware of a potential need for accommodation.

As this is a new law with expanded requirements, practical guidance is limited at this time. HEC will continue to monitor available information.