Does Your Employer Have to Provide You with Any Accommodation for Pregnancy?

Many people, even lawyers, are surprised to find out that no federal laws explicitly require employers to make reasonable accommodations for their employees’ pregnancies.  Intuitively, the leading statutory contenders to require such measures might be Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (the ADA), or the Family Medical Leave Act (the FMLA), but while those laws do protect pregnant workers, none go so far as to require that employers provide reasonable accommodations to those workers.  But that will change this June, when the Pregnant Workers Fairness Act, or PWFA, goes into effect.

The PWFA, introduced as H.R.1065 and having passed the Senate in December of last year, will fill in one major missing piece of the scattered patchwork of federal laws protecting pregnant workers.  In short, Title VII was amended in 1978 by the Pregnancy Discrimination Act to extend Title VII’s pre-existing prohibition on sex discrimination to discrimination on the basis of pregnancy, but the ADA’s framework making failure to accommodate a form of discrimination against qualifying disabled workers was still twelve years off.  As for the ADA, since pregnancy is not considered a disability, it affords no protection for pregnancy itself (though it does prohibit discrimination on the basis of disabilities stemming from pregnancy).  Lastly, the FMLA affords qualifying employees twelve weeks of job-protected, though unpaid, leave for pregnancy, but does not address other forms of accommodation.

The PWFA largely tracks the ADA’s framework for reasonable workplace accommodations, but “subs in” pregnancy as the protected condition in place of disability.  Put simply, the PWFA protects qualified pregnant employees—those who are able to perform the essential functions of their positions with or without a reasonable accommodation.[1]  Employers are required to reasonably accommodate a pregnant employee’s “known limitations,” meaning a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability specified in [the ADA].”  H.R. 1065 § 102 (4). 

As under the ADA, a reasonable accommodation under the PWFA is one that does not place an undue burden on the employer’s operations.  The analysis for what is considered a reasonable accommodation will likely track similar analyses for disability accommodations under the ADA, at least at the outset. 

The EEOC, which will administer the law, noted the House Committee on Education and Labor’s examples of what might be reasonable accommodations under the PWFA: “the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.”[2]

 Accommodation-adjacent activities in which employers may not engage are as follows:

“Covered employers[3] cannot: 

  • Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
  • Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
  • Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
  • Retaliate against an individual 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.”[4]

The PWFA is a big step forward for pregnant workers, who are often not meaningfully protected by Title VII’s anti-discrimination provisions, who are not entitled to ADA coverage because they either do not have an accompanying pregnancy-based disability, or accommodations for that disability alone are inadequate, or who either do not qualify for protection under the FMLA or wish to continue working as opposed to taking leave. 

If after June 27, 2023, you are denied an accommodation for your pregnancy or related conditions or terminated for attempting to obtain such an accommodation, you may have a case under the PWFA. 

[1] The law does state that an employee is still considered qualified, even if she is unable to perform the essential functions of her job if the inability is temporary, the essential function can be performed in the near future, and the essential function can be reasonable accommodated.  

[2] https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act

[3] Employers must have 15 or more employees in order to be covered.

[4] Id.