Most employers are aware that a number of federal, state, and local laws prohibit discriminating against applicants and employees based on a characteristic protected under law, e.g., race, national origin, sex, etc. Many employers do not realize that the Americans with Disabilities Act (ADA) imposes upon employers an affirmative obligation, meaning that covered employers must reasonably accommodate a qualified individual with a disability, i.e., provide assistance to an employee with a medical condition, so long as such assistance does not impose an undue hardship.

The federal Pregnant Workers Fairness Act (PWFA), which went into effect on Tuesday, June 27, 2023, creates a similar accommodation obligation as the ADA – except instead of requiring employers to accommodate individuals with medical conditions, the PWFA provides accommodation rights to employees based on pregnancy/potential intended pregnancy, childbirth, etc.

The PWFA is modeled on the ADA, and there are a striking number of similarities between the two:

• Both apply to employers with 15 or more employees;
• Both require covered employers to provide reasonable accommodation to eligible employees unless it causes an undue hardship;
• Both require employers to engage in the “interactive process” with employees, i.e., a dialog between employer and employee regarding the employee’s medical condition and the appropriateness of different accommodations;
• Both prohibit discrimination and retaliation against employees who exercise their rights under the law.

However, the PWFA is slightly different in some respects, and the result is the PWFA actually expanding on the ADA’s protections:

• Under the ADA, an individual only is protected if they have a “disability,” which requires some showing that the mental or physical impairment substantially limits a major life activity. The PWFA requires no such showing – only that the employee has a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions.” Pregnancy, by its nature, creates all sorts of potential “physical or mental conditions” (e.g., morning sickness, high blood pressure, etc.) that may be covered by the Act if communicated to the employer.
• The ADA also only extends protection to “qualified” individuals with disabilities – those who are able to perform the essential functions of their position, with or without reasonable accommodation. Under the PWFA, an individual is still considered “qualified” even if they are unable to perform their essential functions at that time – so long as they can perform such “in the near future.”

What does a reasonable accommodation under the PWFA look like? The House Committee on Education and Labor Report provides several examples, including allowing pregnant employees the opportunity to sit and drink water; closer parking; flexible hours; appropriately sized uniforms and safety apparel; additional breaktime to use the bathroom, eat, and rest; excusing the worker from strenuous activities; and excusing the worker from activities that involve exposure to compounds not safe for pregnancy. Note, however, that these are reasonable accommodations that must be discussed with the employee! Unilaterally changing a pregnant worker’s terms and conditions of employment could result in an employer being on the wrong side of a Pregnancy Discrimination Act lawsuit.

For Maryland employers, the effect of this law may be less significant than in other states. The Maryland Reasonable Accommodations for Disabilities Due to Pregnancy Act (always rolls right off the tongue) already requires Maryland employers to provide a reasonable accommodation to those who have “disabilities” caused or contributed to by pregnancy. However, the term “disability” is not defined by statute – it is certainly reasonable to assume the “physical or mental condition” bar created by the PWFA is a lower hurdle to clear.

Employers should train all Human Resources representatives and managers who have a role in the reasonable accommodation process on the provisions of this new law. Employers also should consider updating accommodation policies to include the right to reasonable accommodation for conditions arising out of pregnancy, childbirth or related conditions. Of course, an RKW attorney will be available to help with any questions or action items needed.  

‍