Every month, our attorneys specializing in pregnancy discrimination get reports from women who have experienced mistreatment at work, been denied accommodation, placed on indefinite medical leave, or compelled to resign as a result of their pregnancies. Unfortunately, it is a prevalent issue that we frequently encounter.
Effective June 27, 2023, the Pregnant Workers Fairness Act (PWFA) is a federal law that safeguards the rights of employees who are pregnant, in the process of recuperating from childbirth or experiencing other medical issues linked to pregnancy. This legislation represents a significant advancement in ensuring equal rights and opportunities in the workplace for all women, including mothers and expectant mothers. It applies to companies that employ a minimum of 15 employees.
Let’s go over seven crucial aspects that pregnant women, their families, coworkers and employers should be aware of about the PWFA. For an even deeper dive, further information regarding further legislation safeguarding against pregnancy discrimination can be found here.
If you or someone you know is experiencing gender or pregnancy-related bias in the workplace, please reach out to our Tennessee attorneys who specialize in pregnancy discrimination. We offer a complimentary online assessment of your case, which may be accessed by phone, dialing (901) 737-7740, or through this form. We advocate for employees across the state of Tennessee.
1. Your pregnancy is eligible for coverage, regardless of whether it is a normal and uncomplicated pregnancy.
Every growing family desires a pregnancy without complications. Approximately 90% of pregnancies, as stated by the National Institute of Health (NIH), are free from any acute problems. Prior to the introduction of the PWFA, only individuals who faced severe issues during pregnancy or had comparable limitations to those resulting from job accidents were eligible for coverage. However, we must remember companies under 15 employees are not included in this law.
An essential aspect of the PWFA is its ability to eliminate this prerequisite. Currently, all pregnancies, including those that are normal and without complications, are due to receive suitable accommodations. This protection extends throughout the entirety of your pregnancy and beyond, encompassing symptoms such as morning sickness, as well as the period of nursing and all other related aspects.
2. You may have insurance coverage even if you are not currently pregnant.
Employers with 15 or more employees are obligated to make accommodations for pregnancy, childbirth, and medical issues related to pregnancy, as stated in the PWFA. The Equal Employment Opportunity Commission (EEOC), the federal body responsible for interpreting and enforcing the PWFA, has released regulations that clarify the scope of the PWFA to include a comprehensive range of reproductive health disorders. Some examples of these conditions are:
- Prior gestation
- Possible or planned conception
- Induced termination of pregnancy, which includes both spontaneous miscarriage and deliberate abortion.
- Impaired fertility
- Assisted reproductive technology
- Pelvic prolapse, which refers to the descent or displacement of pelvic organs, such as the uterus, bladder, or rectum, from their normal positions
- Endometriosis, a medical condition characterized by the presence of endometrial tissue outside the uterus
- Swelling of the lower extremities or hands due to fluid accumulation
- Perinatal depression, anxiety, or psychosis
- Incontinence, which refers to the inability to control or hold back bodily functions, particularly the release of urine or feces
- Alterations in hormone levels
- Menstruation, the natural process in which the lining of the uterus is shed through vaginal bleeding
- Contraception use
- Lactation, which implies lactation-related ailments, such as insufficient milk production, breast engorgement, blocked milk ducts, mastitis, and fungal infections
Individuals who are experiencing any of these ailments may have the right to get reasonable accommodation, such as taking time off for medical appointments, even if they are not pregnant.
3. You may have the right to get reasonable accommodation.
According to the PWFA, businesses with more than 15 employees must offer reasonable accommodations to employees with physical or mental medical issues connected to pregnancy, childbirth, or a pregnancy-related medical condition if they have at least 15 employees. A “reasonable accommodation” refers to a modification made to the work environment or the typical working procedures.
The EEOC’s proposed regulations provide a non-exhaustive list of examples of reasonable accommodations that should be made available to workers under the PWFA, which are considered to be essential and should be provided in almost all cases.
The EEOC states that further reasonable employee accommodations may encompass, but are not restricted to, the following conditions:
- Transporting water, maintaining proximity, and consuming water when necessary
- Additional opportunities for using the restroom as required
- Take breaks for nourishment and hydration as necessary
- Granting the option for an employee who is required to stand for their work to sit, and for an employee who is required to sit for their work to stand
- Flexible work arrangements such as part-time or variable schedules
- Provisional relocation
- Enrollment in a program for tasks that require less physical effort
- Procurement or alteration of equipment, clothes, or devices
- Assistive devices designed for tasks involving lifting and/or carrying
- Allowing the utilization of compensated time off (whether accumulated paid time off, included in a temporary disability program, or any other employer-provided advantage)
- Granting extended unpaid leave for various purposes, such as recuperation after childbirth or medical issues associated with pregnancy or childbirth, attending medical appointments, or receiving healthcare treatment
- Remote work
- Offering designated parking spots
One of the most significant and reasonable accommodations provided by the PWFA is the option to temporarily suspend employment obligations, including those that are considered essential components of an employee’s job. This suspension is possible indefinitely, including during the full duration of the pregnancy, if necessary. As an illustration, a pregnant employee whose job entails carrying large boxes could be exempted from this responsibility. This enables more extensive provisions than those accessible under the ADA (The Americans with Disabilities Act).
In addition, according to the Tennessee Pregnant Workers Fairness Act (TPWFA), which is Tennessee’s equivalent of the PWFA, pregnant employees in Tennessee have the right to receive the following non-exhaustive list of reasonable accommodations:
- Increased frequency, extended duration, or adaptable intervals for breaks
- A designated area, distinct from a restroom stall, for the purpose of lactating and expressing breastmilk in privacy.
- Implementing alterations to the seating arrangement or increasing the frequency of sitting breaks when the job necessitates standing.
- Aid with physical tasks and weight restrictions
- Interim reassignment to an unoccupied role
- If job reorganization or light duty is available, it can be considered as an option.
- Acquisition or alteration of equipment, devices, or an employee’s workstation
- Altered work schedules
- Adaptable arrangement of appointments during prenatal visits
Employers are obligated to provide reasonable employee accommodations, unless they can demonstrate that the requested accommodation would cause significant difficulty or hardship to their operations. An “undue hardship” refers to a situation where supplying the accommodation would result in substantial difficulties or expense for the employer.
If you suspect that your employer has not made the necessary arrangements to support your pregnancy or if your legal rights relating to pregnancy have been infringed upon, please get in touch with our employment discrimination lawyers in Chicago.
4. Regardless of the duration of your employment, you have the right to take medical leave.
An improvement brought upon by the PWFA is that employees working for an employer with a minimum of 15 staff members have the right to take medical leave for any reasons linked to pregnancy, childbirth, or pregnancy-related medical issues. The Pregnant Workers Fairness Act (PWFA) applies exclusively to employees, excluding other categories of workers such as independent contractors. However, it provides protection to all employees, regardless of their employment status (part-time or full-time), compensation structure (salaried or hourly), or length of service with the employer, as long as they are pregnant or facing a pregnancy-related condition.
This legal amendment represents a significant alteration in the existing legislation. Unlike other laws such as the Family and Medical Leave Act (FMLA), which grants employees the right to take medical leave for various serious health conditions, including pregnancy and childbirth, this change applies to all employees regardless of their length of employment or the size of their employer’s workforce within a certain radius of their workplace. The FMLA covers approximately 56% of workers, as stated by the EEOC.
According to the PWFA, every employee has the right to take maternity leave and be absent from work for doctor’s appointments, postpartum recovery, or any other medical needs linked to their pregnancy.
Another significant change is that, according to the PWFA, companies are prohibited from compelling employees to take medical leave (whether it is paid or unpaid) unless there is no alternative accommodation accessible. This represents a significant advancement in guaranteeing women’s autonomy to make choices that are most beneficial for themselves and their families, free from any intervention by their employers.
5. You have the right to engage in a constant conversation regarding your requirements.
According to the Pregnant Workers Fairness Act (PWFA), employees are required to request accommodations relating to pregnancy if they need them. It is not necessary for you to possess knowledge of the precise terminology of the law or employ a certain expression. Instead, it is necessary for either you or a close family member to inform the designated contact (according to your handbook, typically your supervisor and/or Human Resources) that, as a result of your pregnancy, childbirth, or pregnancy-related medical condition, you require modifications to be made to your work environment or employment. The following examples, provided by the EEOC, illustrate remarks that would be deemed as a formal request for accommodation:
“I am experiencing difficulty in arriving at work punctually due to my morning sickness.”
“Due to my pregnancy, I require additional restroom breaks.”
“I require a leave of absence from work in order to attend a prenatal medical appointment.”
Once you make a request for an accommodation, your employer is obligated to engage in a conversation with you regarding your medical condition and the specific modifications you require. This is referred to as the “interactive process.”
As part of the interactive process, your employer may request medical information from your doctor regarding your specific healthcare requirements. Medical documentation can be obtained from many healthcare providers including as doctors, doulas, midwives, lactation consultants, nurses, and therapists. The documentation only has to include three essential pieces of information.
- The document must verify the employee’s specific medical condition, such as back pain, swollen ankles, morning sickness, or a lifting limitation
- Explicitly state that the medical condition is connected to pregnancy, childbirth, or a pregnancy-related medical condition
- Specify the necessary modification or accommodation at the workplace due to the condition, such as allowing time off for doctor’s appointments, imposing a 20-pound lifting restriction, or adjusting the work schedule.
According to the PWFA, employers are not allowed to request additional medical documentation from employees if the need for an accommodation is obvious, if the requested accommodation falls under the category of “virtually always” reasonable accommodations, if the request is related to lactation or pumping, or if the employee has already provided enough information to the employer. Instances such as requesting a bigger uniform, taking breaks for breastfeeding, or needing accommodations for sitting or drinking water during pregnancy are self-evident and should not necessitate any supporting paperwork. Likewise, a woman experiencing morning sickness and needing to arrive late cannot be obligated to provide a fresh medical certificate on each occasion.
If your employer attempts to compel you to accept a particular accommodation without prior discussion, it could potentially be in violation of the Pregnant Workers Fairness Act (PWFA). Similarly to the provisions for disability accommodations outlined in the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA) does not necessarily grant employees the freedom to select their own accommodation. If multiple accommodations are equally effective, the employer retains the right to determine which accommodation will be permitted. However, it is important to note that employers are prohibited from compelling pregnant employees to take medical leave unless there are no alternative arrangements possible.
6. Your employer is prohibited from retaliating against you for requesting accommodations.
According to the Pregnant Workers Fairness Act (PWFA), businesses are bound by law to provide necessary accommodation to pregnant workers. Equally significant, employers are not allowed to impede, attempt to obstruct, exert pressure, make threats, or take revenge against you for requesting accommodations.
More precisely, the PWFA forbids employers from engaging in the following actions:
- Refusing to provide appropriate accommodations for pregnancy, childbirth, or pregnancy-related medical issues, unless it causes an excessive burden
- Refusing to hire or take negative actions against a competent employee or job prospect due to their requirement for a reasonable adjustment
- If it is possible to offer an alternative reasonable accommodation that allows the employee to continue working, it is not necessary to mandate the employee to take leave, whether it is paid or unpaid
- Punishing an individual for reporting or opposing illegal discrimination under the PWFA or taking part in a PWFA proceeding (such as an investigation)
- Impeding or negating the rights of any individual under the PWFA
- Engaging in the act of pressuring, frightening, or menacing any person who is engaging in, or assisting or promoting the engagement of other workers in, their entitlements under the PWFA.
Furthermore, the Tennessee Pregnant Workers Fairness Act (PWFA) explicitly forbids employers from including pregnancy-related absences in their no-fault attendance policy. This would encompass measures such as a “point system” in which points are assigned for all instances of absence, irrespective of the cause.
7. In the event that your legal rights pertaining to pregnancy are infringed upon, promptly get in touch with an employment attorney.
The Equal Employment Opportunity Commission (EEOC) is currently taking Charges of Discrimination for instances of violating the Pregnant Workers Fairness Act (PWFA). To initiate an Equal Employment Opportunity Commission (EEOC) charge under the federal Pregnant Workers Fairness Act (PWFA), an employee needs to raise a complaint on an incident that occurred on or after June 27, 2023. If you wish to get a better understanding of the EEOC process, we recommend checking out our articles that explain the significance of engaging an employment attorney to initiate your EEOC charge.
If you suspect that you have experienced discrimination due to your pregnancy before June 27, 2023, there are further legislations that could potentially safeguard your rights, such as the Tennessee Pregnant Workers Fairness Act (PWFA), which was enacted in 2020. Further information regarding further legislation safeguarding against pregnancy discrimination can be found here.
Individuals have the ability to initiate legal proceedings in order to seek compensation for their pregnancy workplace rights under the PWFA. Plaintiffs involved in PWFA claims are eligible to collect the same amount of compensation as in other instances of sex discrimination. This includes reimbursement for lost wages, front pay, compensatory and punitive damages, as well as coverage for attorneys’ fees and court expenses. Further information regarding the various compensatory measures in a lawsuit pertaining to employment discrimination can be found here.
Act promptly
The PWFA, a recently enacted federal legislation, has the potential to significantly transform the treatment of pregnant employees and working mothers within the professional environment. However, this can only occur when workers advocate for themselves and assert their lawful entitlements.
If you suspect that you have been a victim of pregnancy discrimination or if your legal rights have been infringed upon, our highly skilled pregnancy discrimination attorneys in Tennessee are prepared to advocate on your behalf. Reach out through (901) 737-7740.