New Pregnant Workers Fairness Act in Construction

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New Pregnant Workers Fairness Act in Construction

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What Is the Pregnant Workers Fairness Act?

The Pregnant Workers Fairness Act (PWFA), which goes into effect on June 27, 2023, was passed to bridge the gap between the two other pieces of legislation that provide workplace protections for pregnant employees:

  • The Americans with Disabilities Act (ADA), passed in 1990, and
  • The Pregnancy Discrimination Act (PDA) of 1978, which was an amendment to Title VII of the Civil Rights Act of 1964.

Prior to the PDA, employees affected by a pregnancy, childbirth, and related medical conditions had little recourse if they were not treated by their employers in the same way as employees with medical issues not related to pregnancy or childbirth. The ADA expanded protection for pregnant workers to require that certain pregnancy-related conditions, such as gestational diabetes, hypertension, or severe, persistent vomiting, be treated as disabilities.

Closing the Gap

Still, there were a number of conditions related to pregnancy that were not considered to be disabling but still required some accommodation. That was the impetus for passing the Pregnant Workers Fairness Act. The PWFA requires employees with 15 or more employees to provide reasonable accommodations for “known limitations related to pregnancy, childbirth, and related medical conditions.” Both mental and physical conditions are included, but PWFA does not apply to pregnancy itself.

This requirement applies to all qualified employees, but only to the extent that such accommodations would not “impose an undue hardship on the operation of the business.”

What Are Reasonable Accommodations?

The PWFA defines reasonable accommodation as any “modification or adjustment to a job or the work environment that will enable an applicant or employee with a disability to participate in the application process or to perform essential job functions.” This is very similar to the definition of reasonable accommodation under the ADA: a “modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process.”

The PWFA leaves it up to the Equal Employment Opportunity Commission (EEOC) to determine exactly what reasonable accommodations might be required and issue appropriate regulations. However, that will not occur before PWFA goes into effect on June 27. Some examples include:

  • The ability to sit
  • The ability to drink water
  • Access to parking close to the workplace
  • Flexible work hours
  • Appropriately sized uniforms and safety apparel
  • Additional break time for restroom use, eating, resting, etc.
  • Taking leave after childbirth
  • Being excused from strenuous activities
  • Being excused from activities that would expose the employee to “compounds not safe for pregnancy”

Prohibited Employer Actions

The PWFA prohibits employers from discriminating against qualified employees by requiring them to accept anything other than reasonable accommodations or denying them opportunities based on their need for reasonable accommodations. It also prohibits employers from requiring covered employees to take paid or unpaid leave rather than providing them reasonable accommodations if feasible. And it prohibits employers from taking adverse employment actions against qualified employees requesting reasonable accommodations or retaliatory actions against employees who report or protest unlawful discrimination as defined by the PWFA.

What Does PWFA Mean for Construction Companies?

All employers are going to need to assess the impact of PWFA on their particular business and what accommodations they may need to provide for qualified employees due to pregnancy or recent childbirth. This may involve reviewing and updating the company’s HR policies and procedures based on the EEOC regulations to be announced in the coming months.

With more women entering the construction workforce, every year, most construction companies can expect to receive requests for accommodations under PWFA. Regulatory compliance of all sorts is key to a construction company’s ability to obtain the surety bonds they need to provide in order to bid and work on many projects.

Surety bond companies scrutinize a contractor’s business practices and track record, as well as their financial status and creditworthiness, as part of the normal underwriting process. Regulatory violations could raise questions about a contractor’s integrity and ethical conduct. That could negatively affect the company’s bonding capacity, which in turn could unnecessarily limit the company’s continued growth and ability to take on larger projects.

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