6/28/23: Now in Effect: What to Know About the Pregnant Workers Fairness Act

June 28, 2023

Effective June 27, 2023, the Pregnant Workers Fairness Act (PWFA) now requires employers with 15 or more employees to provide reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that providing an accommodation would impose an undue hardship on the employer’s business operations. While Oregon law already provides similar protections to workers under ORS 659A.147, employers who have employees working in other states should pay special attention to this new federal law.

Generally, to qualify for protection under the PWFA, an employee or applicant must be able to perform the essential functions of the position, with or without a reasonable accommodation. However, an employee or applicant will still qualify under the PWFA if: (1) any inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated.

More specifically, the PWFA makes it an unlawful employment practice for employers to:

• Fail to provide a reasonable accommodation for a qualified employee’s known limitation related to the pregnancy, childbirth, or a related medical condition (unless the accommodation would impose an undue hardship on the employer’s business operations);

• Require a qualified employee to accept an accommodation without a discussion about the accommodation between the employee and the employer (i.e., without engaging in the interactive process);

• Deny a job or other employment opportunity to a qualified employee or applicant based on the individual’s need for a reasonable accommodation;

• Require a qualified employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;

• Retaliate against a qualified employee or applicant for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or

• Interfere with any individual’s rights under the PWFA.

The U.S. Equal Employment Opportunity Commission (EEOC) has additional guidance to assist employers in complying with the PWFA. Employers should also review their handbooks and pregnancy accommodation policies, as well as train supervisors, managers, and HR staff about how to implement these policies moving forward.

For questions related to the Pregnant Workers Fairness Act or other employment laws, contact the Barran Liebman team at 503-228-0500.