Texas employers should get ready to comply with the Pregnant Workers Fairness Act (PWFA), a new federal law that goes into effect June 27, 2023. The PWFA provides additional protections for pregnant employees, employees who have recently given birth, and employees with related medical conditions. The PWFA requires employers to provide additional accommodations for limitations relating to pregnancy, childbirth, and related medical conditions.

Which employers does the PWFA apply to?

The PWFA generally covers employers that are covered under Title VII of the Civil Rights Act of 1964. Under that statute, an employer is covered if it employs 15 or more employees in 20 or more calendar weeks in the current or preceding year.

What rights does the PWFA provide employees?

Reasonable Accommodations

Since the passage of the Pregnancy Discrimination Act of 1978, covered employers have been prohibited from discriminating against employees based on pregnancy, childbirth, and related medical conditions. The PDA has also required employers to treat pregnant employees the same as other employees who have a similar ability or inability to work. Under this framework, if a pregnant employee asked for an accommodation due to her pregnancy, the employer would have to analyze whether other employees who were similarly able or unable to work were granted similar accommodations, and whether the employee had impairments that rose to the level of a “disability” under the Americans with Disabilities Act (ADA). The PWFA makes this analysis no longer necessary.

Under the PWFA, covered employers are required to provide reasonable accommodations to known limitation relating to pregnancy, childbirth, or related medical conditions of a qualified employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.

A few defined terms delineate this accommodation obligation:

• The statute requires employers to provide “reasonable accommodations.” This term is defined the same way as in the ADA. The EEOC has provided some guidance on what this could include:
  • 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
  • excuse from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy
• The statute only requires employers to accommodate “known limitations” relating to pregnancy, childbirth, or related conditions. By “known limitations,” the PWFA means physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee (or the employee’s representative) has communicated to the employer, whether or not those conditions give rise to a “disability” under the ADA. Thus, the conditions do not need to be severe, but the employee must provide the employer notice of them to be entitled to accommodation.
• Only “qualified employees” are entitled to accommodation under the PWFA. A “qualified employee” is an employee or applicant, who, with or without reasonable accommodation, can perform the job’s essential functions, except that an employee or applicant will be considered “qualified” 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.
• An employer is not required to provide an accommodation that would impose an “undue hardship” on the operation of the employer’s business. “Undue hardship” carries the same meaning as under the ADA – that is, significant difficulty or expense.

Under the PWFA, an employer cannot require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through an interactive process. Moreover, a qualified employee cannot be required to take leave (paid or unpaid) if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee. Thus, when a pregnant employee asks for a reasonable accommodation other than leave, an employer should engage in the interactive process to determine possible reasonable accommodations, and the employer cannot require the employee to take leave if other reasonable accommodations are available.

Antidiscrimination and Anti-Retaliation Requirements

In addition to the accommodation requirements, the PWFA also prohibits employers from denying employment opportunities to a qualified employee if the denial is based on the need to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee.

Moreover, the PWFA contains anti-retaliation provisions, prohibiting adverse actions in the terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation. In addition, the statute prohibits coercion, intimidation, threats, or interference with an employee because the employee exercised her rights, or helped or encouraged another to exercise her rights, under the PWFA.

In addition, the PWFA protects employees from retaliation for opposing unlawful practices under the PWFA or for making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under the PWFA.

What should Texas employers do to comply with the PWFA?

Texas employers covered by the PWFA should ensure that appropriate managers and HR personnel are trained to process accommodation requests by pregnant employees, employees with related medical conditions, and employees who have recently given birth. They should also assess possible accommodations that could be provided to pregnant employees, employees who have recently given birth, and employees with related medical conditions. Finally, Texas employers should also ensure that their accommodation policies are updated to account for their new obligations under the PWFA.