The Pregnant Workers Fairness Act (the “Act” or “PWFA”) provides increased protection for workers seeking accommodation due to pregnancy. The Act is administered and enforced by the Equal Employment Opportunity Commission (“EEOC”) and requires “covered employers” to provide reasonable accommodations for an employee’s limitations due to pregnancy, childbirth, or a related medical condition, unless the employer can demonstrate that accommodation causes undue hardship, as defined in the Americans with Disabilities Act. Unlike the ADA, the PWFA requires accommodations for known limitations stemming from pregnancy or childbirth, whether or not that condition meets the definition of disability.
This article has been updated to include clarifications to the Act under the final regulations, published April 19, 2024. The final regulations will take effect June 18, 2024.
Who is a “Covered Employer” under the PWFA?
The PWFA applies to public and private employers with 15 or more total employees, all state and federal employers, employment agencies, and labor organizations.
What Protections Does the Act Provide Pregnant Employees?
The PWFA makes it an unlawful employment practice to:
- Fail to make reasonable accommodations for “the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship”;
- Require an employee with the relevant conditions to accept accommodations not created through an interactive process as described in the ADA (generally a two-way conversation between the employee and employer);
- Deny employment opportunities to a qualified employee due to the need to make accommodations due to a condition related to pregnancy or childbirth;
- Require an employee to take leave (paid or unpaid), where a reasonable accommodation can be provided; or
- Take adverse employment action against an employee for using accommodations due to conditions stemming from pregnancy and childbirth.
The Act also expands who is considered a “qualified employee” beyond the definition provided by the ADA (which defines a qualified employee as “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position”), to also include an employee or applicant that is unable to perform essential functions temporarily, if they could be performed in the “near future” and this inability to perform an essential function could be “reasonably accommodated.”
The final regulations provide the following examples of pregnancy related conditions (not intended to be an exhaustive list): termination of pregnancy, including by miscarriage, stillbirth, or abortion; lactation and conditions related to lactation; menstruation; 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. The regulations also list conditions not specific to pregnancy that may be exacerbated by pregnancy or childbirth, including migraines, carpal tunnel and high blood pressure.
The final regulations clarify that an employee may have more than one “essential function” or necessary duty of the position suspended and still be considered qualified. In addition, the EEOC clarified that the determination of when essential functions can be considered to be performed “in the near future” is a case-by-case analysis depending on the need for accommodation, but is generally considered to be a period of 40 weeks. For accommodations related to lactation, which could extend beyond 40 weeks, “in the near future” may be reasonably considered to encompass a longer period.
What Accommodations Must Employers Provide to Employees Under the Act?
The regulations explain the EEOC’s view that requests for pregnancy and childbirth related accommodations should be allowed to be requested through multiple straight forward avenues. The regulations list “simple accommodations” like additional water, meal or bathroom breaks, being allowed to carry water and drink as needed, or being provided a chair to sit in at a standing role, that should be put in place swiftly without a complicated approval process. In addition, employers who require supporting documentation only may do so where it is reasonable and should accommodate employees who may have a delay in procuring documentation by considering possible interim accommodations.
The final regulations (similar to the proposed regulations) also state that, unlike the ADA, an employer cannot dispute an accommodation request by arguing that a similar accommodation has not been provided to other employees in the past if the accommodation is otherwise reasonable and does not create undue hardship. It is also clarified that accommodations under the PWFA only apply to the individual experiencing the pregnancy-related limitation and do not apply to the employee whose spouse, partner, or family member is experiencing a pregnancy-related condition.
Unlike the proposed regulations, the final regulations add a requirement to provide lactation accommodations beyond what is required under the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”). In addition to providing reasonable time and a space free from intrusion, as required under the PUMP Act, the PWFA requires employers to provide additional accommodations related to lactation such as a space with proximity to a sink and refrigeration for storing milk. The regulations add time for nursing (in addition to pumping) to the list of reasonable accommodations. The EEOC clarifies that this accommodation does not allow employees to bring their child to the workplace, but is designed to accommodate situations where the child is in close proximity to the employee in a normal workday such as a daycare center or where an employee already works from home.
What Other Laws Provide Protection to Pregnant Workers?
Many states and localities have laws that provide protection for pregnant employees. The Act does not replace federal, state, or local laws that provide additional protection for pregnant workers beyond what the Act requires.
Federal laws that apply to workers affected by pregnancy, childbirth, or related medical conditions, include:
- Title VII, which protects pregnant/post-partum employees from discrimination based on pregnancy, childbirth, or related medical conditions; and requires employers to treat pregnant/post-partum employees similar to other employees requiring reasonable accommodations;
- The ADA, which protects an employee from discrimination based on disability (including some conditions stemming from pregnancy, but not pregnancy itself); and requires covered employers to provide reasonable accommodations (unless the employer can prove undue hardship);
- The Family and Medical Leave Act, which provides covered employees with unpaid, job-protected leave for certain family and medical reasons; and
- The PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act), which broadens workplace protections for employees to express breast milk at work.
Employer Action
Employers should review existing policies, handbooks, and procedures discussing PWFA-related accommodations in advance of the regulation’s June 18, 2024 effective date to ensure they remain in compliance with the Act’s expanded and clarified requirements.
Originally posted October 11, 2023.
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