28 MARCH / APRIL 2023 Debra A. Mastrian Partner Amundsen Davis LLC DMastrian@ AmundsenDavisLaw. com Pregnant Workers and Nursing Mothers Two new federal laws taking effect Amundsen Davis LLC is a Diamond Associate Member of the Indiana Bankers Association. HUMAN RESOURCES On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act). The PWFA Effective June 27, 2023, the PWFA requires employers with at least 15 employees to provide a “reasonable accommodation” to qualified applicants and employees with “known limitations related to the pregnancy, childbirth, or related medical conditions” unless the accommodation or modification imposes an undue hardship. The PWFA resembles the Americans with Disabilities Act (ADA) in many respects, requiring an employer to engage in an interactive process to determine an appropriate reasonable accommodation. One important difference is that under the PWFA, an employee or applicant is still “qualified” even if they are temporarily unable to perform the essential functions of their job so long as their temporary inability to perform their job can be reasonably accommodated and they will be able to perform the essential functions “in the near future.” The PWFA is similar to Indiana’s Pregnancy and Childbirth Accommodation law (Ind. Code §22-9-12) which went into effect in July 2021. That state law also applies to employers with 15 or more employees. It allows an employee to request, in writing, an accommodation for her pregnancy, childbirth or any related medical conditions. If they do, an employer must respond within a reasonable time and engage in an interactive process to assess potential reasonable accommodations. Unlike the PWFA, Indiana’s law provides examples of reasonable accommodations, such as additional or longer breaks, temporary light duty assignments or temporary transfer to a less strenuous or hazardous position (if available), modified work schedules, flexible hours, remote work, ergonomic adjustments to the workplace (e.g., modified work equipment or seating) or assistance with manual labor (e.g., lifting). Under both the PWFA and Indiana’s state law, an employee does not have the right to the accommodation of her choice. The PWFA also provides that an employer cannot require the employee to take paid or unpaid leave if an alternative reasonable accommodation is available. Under the PWFA, employers are provided with a good faith defense against liability if they engaged in a genuine effort to find a reasonable accommodation that does not impose an undue burden on the employer. Discipline, termination or retaliation of any kind against an employee who asks for, or is provided with, an accommodation is prohibited under both laws. Retaliation is any adverse employment action because of the request and may include things such as reprimanding the employee or giving a lower performance evaluation than should have been given, transfer to a less desirable position, verbal abuse or hostile comments, increased scrutiny or making the employee’s work more difficult (e.g., changing the employee’s schedule to conflict with medical appointments).
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