Pregnant Workers Fairness Act – The Journey and Final Destination

There has been a lot of talk about the Pregnant Workers Fairness Act (PWFA). So, where are we now? What do you need to know? This newsletter provides a snapshot of what it took to get the PWFA and its regulations finalized, where we have landed, and the major takeaways. If you want to know more, join us for a Breakfast with Bradley webinar on Thursday, September 12 from 9 a.m. to 10 a.m. to hear insights on how the PWFA may look in action.

Timeline of PWFA and Focus on Accommodations

The EEOC has been signaling for some time that pregnancy is on its radar. Thus, it’s no surprise that the EEOC spent considerable time and effort getting the PWFA down the line. The PWFA officially went into effect on June 27, 2023. The EEOC, responsible for issuing regulations and other resources for compliance with certain workplace discrimination laws, published its preliminary PWFA regulations on August 11, 2023, followed by a 60-day public comment period. After receiving over 98,000 comments, the EEOC issued final regulations on April 15, 2024, and they went into effect on June 18, 2024.

The PWFA was modeled after the Americans with Disabilities Act (ADA). The ADA is notoriously different than other federal discrimination statutes because it not only prohibits treating employees less favorably based on their disabilities but also requires employers to help employees with disabilities in certain circumstances. In other words, the ADA prohibits employers from discriminating against employees with disabilities and at the same time requires employers to treat them favorably and provide what is commonly known as “reasonable accommodations.” This is different than statutes such as Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, which simply prohibit discrimination.

The previous Pregnancy in Discrimination Act (a 1978 amendment to Title VII) already prohibits discrimination based on pregnancy and requires covered employers to treat pregnant employees the same as others similar in their ability or inability to work. Enter the PWFA, which, like the ADA, requires that employers provide “reasonable accommodations” for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. Now employers have an affirmative duty to accommodate an employee’s known pregnancy-related needs, just as they must accommodate known needs of an employee with a disability.

EEOC Guidance – Before the Regulations

The EEOC issued some guidance on the PWFA. The EEOC’s examples of potential accommodations include things such as flexible hours, additional breaks, leave for healthcare appointments, providing stools for sitting, excusing employees from lifting and other strenuous activities, and adjustments to the employee’s uniform.

Notably, the EEOC also includes more significant examples of accommodations, such as leave, telework, and temporary reassignment to another vacant position for which the employee is qualified. While the ADA has occasionally provided for such accommodations under certain circumstances, courts have also been hesitant to hold that leave and remote work are reasonable, often because they excuse an “essential job function” of workplace presence and are therefore unreasonable. However, in its list of potential PWFA accommodations, the EEOC goes further, stating that the “[t]emporary suspension of one or more essential functions of a job” could be a reasonable accommodation.

Additionally, the EEOC states that “[l]eave to recover from childbirth or other medical conditions related to pregnancy or childbirth” may be required. There is currently no federal requirement to provide paid parental leave post-childbirth, although the Family and Medical Leave Act requires some unpaid leave, and the EEOC guidance does not state whether such a leave accommodation should be paid or unpaid.

PWFA Regulations

The PWFA regulations are the last thing we have from the EEOC regarding the PWFA, and they will serve as a guiding light for employers and courts trying to figure out what exactly the PWFA requires. We’ve blogged on these regulations twice, noting that they are broad and perhaps more employee-friendly than expected. Here are the highlights:

• With the PWFA’s broad language of “limitations related to pregnancy, childbirth, or related medical conditions,” the EEOC intends for the PWFA to have broad coverage, potentially covering conditions related to fertility and termination of a pregnancy.
• On the other hand, the regulations state that you must only accommodate employees and applicants, as the employee must be the one experiencing the condition. PWFA accommodations are not required “when an employee’s partner, spouse, or family member—and not the employee themselves—has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”
• Comparable to the ADA, a complaining PWFA employee must be a “qualified employee” (or applicant) and a “qualified employee” must be able to perform the essential functions of the job. However, unlike under the ADA, there is a caveat: If the employee cannot perform the essential functions, that is acceptable as long as she is able to do so “in the near future” and the inability to perform the essential functions can be reasonably accommodated.
• Consistent with the ADA, employers must engage in the interactive process and cannot require an employee to accept an accommodation without first going through the interactive process. Also similar to the ADA, employers may only deny accommodations if they would cause an undue hardship.
• Employers are only permitted to seek supporting documentation if it is reasonable under the circumstances.

Action Items

Now that we have the PWFA statute and EEOC regulations, employers have the guidance they are going to get (for now) regarding application of the PWFA. Just as with claims under the ADA and Title VII, employees may bring EEOC charges alleging violations of the PWFA and must do so if they plan to subsequently file their own private PWFA lawsuit. Once filed, courts will provide their interpretations of the PWFA and its regulations, and the law will begin to fully take shape.

What can you do now to protect yourself if these charges and lawsuits come knocking?

• Perhaps the most important action item is to revise any written policies and ensure they provide a process for requesting accommodations due to pregnancy.
• You should review job descriptions to make sure they reflect the actual duties of the position and include the position’s essential functions, as these may become important in litigation over what constitutes a reasonable accommodation. Consider including whether the position needs to be done in person and why.
• As part of the above review, revisit the physical requirements of the job. Often times material job changes have taken place, but the job description has not been modified. Employers have gotten tripped up under the ADA by insisting that certain physical requirements, like “no sitting down,” are essential functions of the job only to find out in litigation that employees actually can and/or do sit, or have in the past, while performing some of their job duties.
• You will not want to delay in responding to any employee who indicates they need job assistance due to pregnancy or a related condition, and there is no magic language for the employee’s request. Accordingly, remind your supervisors and managers that they now have a duty to refer to Human Resources any employee who mentions needing an accommodation or other help related to their pregnancy.
• Lastly, the EEOC has published a “Know Your Rights” poster that you should download and post in your workplace, on your intranet, and the like.