By: Nicholas Bonds, Esq.

On December 29, 2022, President Biden signed the Consolidated Appropriations Act of 2023 (CAA 2023). Among many, many other things, the CAA included a key law expanding protections for pregnant workers. This law addresses significant limitations in the current regulatory framework for these workers, particularly under the Americans with Disabilities Act (ADA) which does not consider pregnancy a covered disability, and the Pregnancy Discrimination Act (PDA) which does not require accommodation (beyond those afforded to other similarly situated employees).

Under the prevailing legal standard, pregnant workers are required to show that someone else in their workplace received similar accommodations to theirs in order to receive their own medically necessary accommodations. This was the framework established by the PDA and the Supreme Court case Young v. UPS, which still led to the overwhelming majority of pregnant workers losing their accommodation cases.

Reasonable accommodations under the ADA seemed to provide a viable alternative to the PDA, however, this approach suffered key deficiencies where pregnant workers were concerned. The ADA has been routinely interpreted by courts to mean that, absent complications, pregnancy is not an ADA-qualifying disability meriting accommodation. Pregnant workers with qualifying disabilities could receive protection, but millions of workers with other significant medical needs that did not quite meet the level of a “disability” under the ADA were left with no recourse.

Fortunately for pregnant workers, the Pregnant Workers Fairness Act (PWFA) will now grant them much more significant, ADA-style protections going forward. The PWFA specifically requires employers to provide reasonable accommodations to pregnant employees so long as the accommodations do not impose an undue hardship on the employer. These accommodations may include additional chairs or seating, expanded break time to access medication or deal with nausea or simply rest, or an exception from certain strenuous or hazardous activities. Even a leave of absence – paid or unpaid – may constitute a reasonable accommodation, just as it might under the ADA.

Taking effect June 27, 2023, The PWFA still needs to be implemented by regulations. The Equal Employment Opportunity Commission (EEOC) has been tasked with this assignment, and we will have to keep our eyes open for draft regulations over the next year. In the meantime, self-funded plans will need to consider adding language to their plan documents and employee handbooks to accommodate such a leave and continuation of coverage (if indeed they wish to continue coverage). And of course, employers need to ensure their stop-loss carrier is on board to minimize issues with reimbursement. The Phia Group is here to assist with any such language or compliance questions as they come up.