On December 29, 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) into law, effective June 27, 2023. The PWFA applies to private and public sector employers with 15 or more employees and requires a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity. The PWFA is administered and enforced by the EEOC which posted a notice of proposed rulemaking on August 7, 2023, to implement the PWFA. The EEOC’s proposed rule was made available for public comment in the Federal Register on August 11, 2023, and the public has until October 10, 2023, to submit comments here.
The regulation’s bipartisan support was lauded by the EEOC’s Vice Chair, Jocelyn Samuels, who commented, “The EEOC’s bipartisan proposed regulation helps to bring the promise of this transformative law to life, enabling pregnant and postpartum workers to retain their jobs while maintaining a healthy pregnancy and recovering from childbirth.” She added, “The regulation provides concrete, real-world examples that help workers understand their rights and help employers comply with the new law and reap the benefit of retaining skilled employees.”
PWFA Definitions – A Deeper Dive
The PWFA requires covered employers to provide reasonable accommodations to a qualified worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. While the PWFA uses many of the same or similar terms found in the ADA and Title VII, the PWFA’s definitions of those terms are generally broader in scope.
The proposed regulations provide a non-exhaustive list of possible reasonable accommodations under the PWFA including: frequent breaks, sitting/standing, schedule changes and part-time work, telework, job restructuring, and temporarily suspending one or more essential job functions if the worker can perform the essential function in the near future. Temporarily suspending the requirement to perform an essential function of the job is a significant difference from what’s required by the ADA accommodation process as such an accommodation isn’t considered “reasonable” under the ADA. When considering the reasonableness of temporary suspension of an essential function, the EEOC proposes considering whether other employees, temporary employees or even a third party can temporarily perform the essential function or if the essential function can simply be postponed for a period of time.
There are four specific accommodations the EEOC states, “in virtually all cases,” will be reasonable accommodations that do not impose undue hardship when requested by a pregnant employee. The four accommodations are: 1) allowing an employee to carry water and drink, as needed, in the employee’s work area; 2) allowing an employee additional restroom breaks; 3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and 4) allowing an employee breaks, as needed, to eat and drink. The EEOC takes the position that these requests should be accommodated and that requesting documentation, beyond a self-attestation, would not be reasonable. The proposed regulations prohibit employers from requiring a qualified employee to take a leave of absence, paid or unpaid, if another reasonable accommodation can be provided that would allow the employee to keep working.
The EEOC anticipates that employers can navigate many accommodation requests without the need for medical or other supporting documentation, possibly different from the way a company has handled accommodation requests in the past. The proposed regulations explain that employers may only request supporting documentation if it is reasonable under the circumstances, and the regulations include several examples of when it would not be reasonable to request documentation: 1) when both the limitation and the need for reasonable accommodation are obvious; 2) when the employee or applicant has already provided sufficient information, e.g., the employee has already provided a medical note imposing standing restrictions for a specific time period; (3) when an employee states or confirms she is pregnant and requests one of the four common accommodations discussed above; and (4) when the limitation concerns lactation or pumping.
When documentation is permitted under the proposed regulations, the employer may seek documentation that describes or confirms: 1) the physical or mental condition; 2) the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and 3) a change or adjustment at work is needed for that reason.
The PWFA recognizes the following two definitions of “qualified”:
- The PWFA uses language from the ADA to define “qualified” as, “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.”
- The PWFA allows an employee or applicant to be “qualified” even if they cannot perform one or more essential functions of the job if the inability is temporary, the worker could perform the essential function(s) in the near future, and the inability to perform the essential function(s) can be reasonably accommodated. The proposed rule defines “temporary” as “lasting for a limited time, not permanent, and may extend beyond the near future and “in the near future” as generally within forty weeks.
The PWFA defines “known” to mean the employee or applicant, or a representative of the employee or applicant, has communicated the limitation to the covered entity.
“Limitation” means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. There is no required level of severity concerning the limitation. The “physical or mental condition” that is the limitation may be a “modest, minor, and/or episodic impediment or problem.” The definition includes when a worker affected by pregnancy, childbirth, or related medical conditions has a need or problem related to maintaining her health or the health of her pregnancy. The definition also includes when the worker is seeking health care related to the pregnancy, childbirth, or a related medical condition itself. Notably, the known limitation does not have to rise to the level of a “disability” under the ADA.
“Pregnancy” is defined broadly to include past pregnancies and potential or intended pregnancy.
“Related Medical Conditions”
“Related medical conditions” are conditions “related to, are affected by, or arise out of pregnancy or childbirth.” Examples in the proposed regulations include termination of pregnancy, including by miscarriage, stillbirth, or abortion; infertility; fertility treatment; lactation and conditions related to lactation; use of birth control; menstrual cycles; postpartum depression, anxiety or psychosis; vaginal bleeding; preeclampsia; pelvic prolapse; preterm labor; ectopic pregnancy; gestational diabetes; cesarean or perineal wound infection; maternal cardiometabolic disease; endometriosis; changes in hormone levels; and many other conditions.
The proposed regulations also reference conditions that are not unique to pregnancy or childbirth, such as vomiting, chronic migraine headaches, high blood pressure, nausea, incontinence, carpal tunnel syndrome, and many others. However, the PWFA only applies to these conditions if they are related to or exacerbated by pregnancy or childbirth.
The EEOC anticipates that the determination of whether there is a known limitation will be straightforward and accomplished through a conversation between the employer and employee as part of the “interactive process” and often without the need for documentation or verification unlike the accommodation process under the ADA. The interactive process can occur in person, by phone, over email, or in other ways. A worker does not need to use any particular words or mention the “Pregnant Workers Fairness Act” or the phrase “reasonable accommodation” to start the interactive process. The employer must respond to the request and engage in the interactive process promptly.
“Undue Hardship” is a term borrowed from the ADA, and the PWFA uses a similar definition as in the ADA. Generally, it means the employer would experience significant difficulty or expense to its operation.
The PWFA specifically prohibits the following:
- An employer cannot deny a qualified employee or applicant with a known limitation a reasonable accommodation, absent undue hardship. The proposed regulations provide the following additional considerations to assist with compliance:
- An unnecessary delay in responding to a reasonable accommodation request may result in a PWFA violation.
- An employee who denies a reasonable accommodation that would enable the employee to perform one or more essential functions of the job is no longer considered qualified. However, because the PWFA allows for the temporary suspension of one or more essential functions in some circumstances, the employer must also consider whether one or more essential functions can be temporarily suspended before determining an employee isn’t qualified.
- If an employer makes an unreasonable request for documentation in order to grant the accommodation, the employer cannot defend the denial of the accommodation due to the employee’s failure to provide the documentation.
- In the event of more than one reasonable accommodation, the employer should let the employee decide the accommodation.
- An employer cannot require a qualified employee or applicant to accept an accommodation other than one arrived at through the interactive process.
- An employer cannot require a qualified employee with a known limitation to take leave, either paid or unpaid, if another effective reasonable accommodation exists, absent undue hardship.
- An employer cannot take an adverse action in terms, conditions, or privileges of employment against a qualified employee because the employee requests or uses a reasonable accommodation for a known limitation.
- An employer cannot retaliate against any employee, applicant, or former employee because that person has opposed acts or practices made unlawful by the PWFA or has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the PWFA. Employer harassment is prohibited based on an individual’s exercise of rights under the PWFA.
PWFA Reinforcements to Title VII, the ADA and the FMLA
Prior to passage of the PWFA in December 2022, pregnant or postpartum employees and applicants were limited in their ability to obtain reasonable accommodations, defend against discrimination and, in some cases, take unpaid leave because of pregnancy, childbirth, or related medical conditions under federal law. The PWFA is intended to fill in gaps and build upon existing protections against pregnancy discrimination under Title VII of the Civil Rights Act, provide greater access to reasonable accommodations provided under the ADA and remove barriers to unpaid leave provided by the FMLA.
Under Title VII, an employee affected by pregnancy, childbirth, or related medical condition may be able to obtain a workplace modification allowing them to continue working. However, most cases where an employer refused a workplace modification, and the employee filed a lawsuit, the employee had to prove another similarly situated employee was allowed the modification to win her case. In other cases, the employee had to prove disparate treatment based on the employee’s pregnancy or related medical condition. Some employees were denied simple, common sense workplace modifications like sitting on a stool instead of standing because there were no other similarly situated employees granted such a workplace modification.
The ADA requires certain employees affected by pregnancy, childbirth, or related medical conditions be granted a reasonable accommodation if they can show they have a disability. Pregnancy isn’t itself considered a disability, and the onus was on the employee to prove she had a pregnancy-related disability in order to obtain a reasonable accommodation. That’s no longer the case with the PWFA.
Further, the PWFA deems an employee impaired by pregnancy, childbirth, or related medical conditions qualified and entitled to a reasonable accommodation without the scrutiny the ADA typically places on an employee’s ability to perform essential functions.
Under the FMLA, covered workers can receive up to 12 weeks of job-protected unpaid leave for, among other things, a serious health condition, the birth of a child, and bonding with a newborn within one year of birth. However, employees must work for an employer with 50 or more employees within 75 miles of their worksite and meet certain tenure requirements in order to be entitled to FMLA leave. The PWFA has no such limitations.
Importantly, the PWFA does not replace Title VII, the ADA, or any other federal, state, or local laws that are more protective of employees and applicants affected by pregnancy, childbirth, or related medical conditions.
How Companies Can Prepare for the PWFA
The EEOC’s proposed regulations represent the EEOC’s current interpretation of the PWFA before the agency considers comments and questions from the public. However, the PWFA is a current law, and companies should take steps now to prepare for the EEOC’s final regulation issuance following the October 10, 2023, deadline for public comment submissions. Employers should:
- Educate managers and supervisors on PWFA obligations and how they differ from those of Title VII, the ADA and the FMLA. Specifically, train managers on how to engage in the interactive process to determine if an accommodation is reasonable. Remember that if another federal, state, or local law provides greater protection or different requirements, those laws will also apply. Currently, there are 30 states and five local jurisdictions with their own version of the PWFA or a pregnancy accommodation law.
- Review and determine whether changes are needed to existing forms, practices, and policies to comply with the PWFA. Remember these regulations are subject to change in light of the proposed regulations so employers may want to wait for the EEOC’s final regulation before issuing revised policies or changing practices.
- Post notices describing the PWFA. An updated EEO poster can be found here.
- Consider whether to submit comments on the EEOC’s proposed regulations during the 60-day comment period here.
Get Smart HR
It’s expected the PWFA will bridge a gap between pregnant workers and their right to work in a fair and equal workplace. In its final form, the PWFA will require significant management training and changes to workplace policies and practices for employers to be compliant. Further, coordinating the PWFA with other federal, state and local employment laws could prove challenging. Smart HR consultants are well-versed on all employment laws and their interplay among each other. Now is the perfect opportunity to more closely examine how your company treats pregnant employees and handles requests for reasonable accommodations without running afoul of the law. For a comprehensive review of your policies and practices and guidance on how to roll out changes necessitated by the PWFA, call Smart HR today.