Employment Law Update

The omnibus spending package passed by Congress in December 2022 included a new civil rights law, the Pregnant Workers Fairness Act (PWFA). The PWFA applies to employers with 15 or more employees, including state and federal governments and agencies.  

The PWFA requires employers to make reasonable accommodations for the known pregnancy-related limitations of employees unless doing so would impose an undue hardship. (“Reasonable accommodation” and “undue hardship” have the same meanings under the PWFA as they do under the Americans with Disabilities Act). The law also makes it unlawful for employers to:

• require a qualified employee affected by such condition to accept an accommodation without a discussion (often called the “interactive process”) between the employer and worker;
   
• deny employment opportunities to a qualified employee based on the worker’s need for a reasonable accommodations;
   
• require an employee to take paid or unpaid leave if another reasonable accommodation can be provided; or
   
• retaliate against an individual for requesting or using a reasonable accommodation or opposing unlawful discrimination.

These protections apply to both applicants and employees affected by pregnancy, childbirth, or related medical conditions who can perform the essential functions of the employment position with or without reasonable accommodation.  Even an individual who cannot currently perform an essential function may still be considered a qualified employee under the PWFA if:

• any inability to perform an essential function is for a temporary period;
   
• the essential function could be performed in the near future; and
   
• the inability to perform the essential function can be reasonably accommodated.

The Equal Employment Opportunity Commission (EEOC) is required to issue rules implementing the PWFA within the next two years.  The rules are required to provide examples of reasonable accommodations.  In the interim, the agency has issued an FAQ proving some basic guidance about the new law in which it lists several examples of possible reasonable accommodations including providing:

• the ability to sit or drink water;
   
• closer parking;
   
• flexible hours;
   
• appropriately sized uniforms and safety apparel;
   
• additional break time to use the bathroom, eat, and rest;
   
• leave or time off to recover from childbirth;
   
• an exemption from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

The EEOC states that it will start accepting charges under the PWFA on June 27, 2023 related to claims that arise on or after that date.  

Maryland law already provides specific employment protections for pregnant workers. The 2013 Pregnancy-Related Disabilities law amended the Maryland Civil Rights Act and generally requires employers to provide accommodations to employee with pregnancy-related disabilities.    

The PWFA is effective June 27, 2023. Employers should be on the lookout for the EEOC to issue proposed regulations.  Undoubtedly, there will be differences with Maryland’s existing law that may require employers to tweak their existing pregnancy-related disability policies.  

If you have questions about the PWFA or accommodating pregnant applicants or employees in the workplace, contact:

Charles R. Bacharach
410-576-4169 • cbacharach@gfrlaw.com

Tonya R. Foley
410-576-4238 • tfoley@gfrlaw.com