President Biden Signs New Pregnancy Discrimination Law

Kollman & Saucier
Kollman & Saucier

The Pregnant Workers Fairness Act (PWFA) is a new federal law that will require employers with fifteen or more employees to make reasonable workplace accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. The PWFA, which was included in the Consolidated Appropriations Act for 2023, was signed by President Biden on December 29, 2022 and takes effect on June 27, 2023.

The PWFA closes a loophole in the Pregnancy Discrimination Act of 1978 (PDA). While the PDA protects employees from discrimination based on pregnancy or related conditions, most courts have concluded that it does not require employers to make reasonable accommodations for temporary limitations caused by pregnancy or childbirth.

Under the PDA, if an employee is temporarily unable to perform her job because of a medical condition or limitation related to pregnancy or childbirth, an employer must treat her the same way it would treat a similarly situated temporarily disabled employee. This, say advocates of the PWFA, has resulted in unfair court decisions that result pregnant employees being forced to choose between being fired or placed on leave for abiding their physician’s recommendations, or continuing to work and receive a paycheck. For example, in August 2002 a unanimous three-judge panel of the 7th Circuit Court of Appeals held that a Walmart policy of providing temporary light duty to employees injured on the job, but not to similarly restricted pregnant employees, did not violate the PDA. EEOC v. Wal-Mart Stores East, L.P., No 21-1690 (7th Cir. Aug. 16, 2022)

 Specifically, the PWFA declares that it is an unlawful employment practice to

  • fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation;
  • require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
  • deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
  • require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
  • take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

In Maryland, an employer’s duty to make reasonable accommodations for disabilities related to pregnancy is not new. Maryland’s Reasonable Accommodations for Disabilities Due to Pregnancy Law went into effect on October 1, 2013.

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