The Pregnant Workers Fairness Act Creates New Obligations for Employers

In our March 2023 Disclosure, we pointed out that Congress passed the Pregnant Workers Fairness Act (“PWFA”), which requires employers with fifteen (15) or more employees to provide reasonable accommodations for an employee’s or applicant’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.  The PWFA went into full effect on June 27, 2023, and the Equal Employment Opportunity Commission (“EEOC”) is now investigating claims that allege a violation of the PWFA. 

Employers should know that the PWFA provides workers with much broader accommodation rights arising from pregnancy, childbirth, and related medical conditions than what is currently required under the Americans with Disabilities Act (“ADA”).  For example, the PWFA requires that an employer accommodate “known limitations,” which is broader than the definition of a disability. 

Specifically, a “known limitation” is a limitation that the employee or the employee’s representative has communicated to the employer.  The term “limitation” is defined to include any “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions,” and “does not require a specific level of severity.”  Rather, a limitation “may be a modest, minor and/or episodic impediment or problem.”  Finally, a limitation also includes a worker’s need or problem related to maintaining their health or the health of their pregnancy or health care sought in connection with pregnancy, childbirth, or a related medical condition.  

This means that pregnancy related ailments such as nausea, back pain or swollen ankles and any appointments related to those ailments would generally be considered a “limitation” requiring accommodation.  Like other federal accommodation laws, the employee will most likely only need to communicate the limitation to a supervisor or other management employee for the limitation to be “known” by the employer. 

Another key difference is that a worker is considered “qualified” 1) if the worker can perform the essential functions of the position with or without accommodation or 2) even if the worker currently cannot perform one or more essential functions of the position, the inability to perform the essential function(s) 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. 

While the PWFA does not define these terms, the EEOC’s recently published Proposed Rule to Implement the PWFA (“Proposed Rule”) defines “in the near future” as generally forty (40) weeks.  The Proposed Rule also explains that the essential function(s) that cannot be performed by the worker be “reasonably accommodated” by temporarily suspending the essential function(s), with or without assigning them to someone else, and 1) allowing the worker to continue to perform the remaining function(s) of the job, 2) assigning other tasks to the worker to replace the suspended essential function(s), 3) allowing the worker to perform the functions of a different job to which the employer temporarily transfers or assigns the worker, or 4) allowing the worker to participate in the employer’s light or modified duty program. 

The EEOC and the Proposed Rule also provide specific examples of possible accommodations, including, but not limited to:

• Frequent breaks;
• Sitting/Standing;
• Schedule changes, part-time work, and paid and unpaid leave;
• Telework;
• Receiving closer parking;
• Light duty;
• Being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy;
• Making existing facilities accessible or modifying the work environment;
• Job restructuring;
• Temporarily suspending one or more essential functions;
• Providing appropriately sized uniforms and safety apparel;
• Acquiring or modifying equipment, uniforms, or devices; and
• Adjusting or modifying examinations or policies.

While the analysis for determining whether an accommodation poses an undue hardship under the PWFA is similar to the analysis under the ADA, the Proposed Rule identifies certain accommodations that in virtually all cases will be found to be reasonable and not pose an undue hardship:

• allowing a worker to carry water and drink, as needed, in the their work area;
• allowing a worker additional restroom breaks;
• allowing a worker whose work requires standing to sit and whose work requires sitting to stand; and
• allowing a worker breaks, as needed, to eat and drink.

When a worker requests an accommodation for a known limitation, an employer “is only permitted to do so under the Proposed Rule if it is reasonable to require documentation under the circumstances for the employer to determine whether to grant the accommodation” and is encouraged to offer interim accommodations while the worker is gathering the documentation.  Examples of when an employer may not request documentation are when both the limitation and the need for reasonable accommodation are obvious or when a worker at any time during their pregnancy states or confirms that they are pregnant and seeks one of the following accommodations: 1) carrying water and drinking, as needed; 2) taking additional restroom breaks; 3) sitting, for those whose work requires standing, and standing, for those whose work requires sitting; and 4) breaks, as needed, to eat and drink.

Finally, the PWFA prohibits employers from:

• Requiring a worker to accept an accommodation without a discussion about the accommodation between the worker and the employer;
• Denying a job or other employment opportunities to a qualified worker based on the person’s need for a reasonable accommodation;
• Forcing a worker to take leave if another reasonable accommodation can be provided that would let the worker keep working;
• Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
• Interfering with any individual’s rights under the PWFA.

As a parting reminder, the PWFA does not replace a pregnant worker’s rights under the ADA, Title VII of the Civil Rights Act, The Family and Medical Leave Act, the PUMP Act (which broadens workplace protections for employees to express breast milk at work) or other applicable state and local laws.  As such, employers must remain mindful of their coverage and obligations under each of these laws to ensure that pregnant workers receive all benefits and protections to which they are entitled. 

With the PWFA now in effect, covered employers are legally required to post the EEOC’s updated “Know Your Rights: Workplace Discrimination is Illegal,” which can be downloaded at https://www.eeoc.gov/poster.  To assist employers in complying with the PWFA, the EEOC has prepared a brief summary of the law entitled What You Should Know About the Pregnant Workers Fairness Act and a Summary of Key Provisions of the EEOC’s Proposed Rule to Implement the PWFA.  We appreciate your continued trust in our ability to protect your business and provide you with up-to-date and relevant information. 

THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.  LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.