As we noted in an earlier bulletin, June 27, 2023, marked the effective date of a new federal law concerning pregnant employees. The Pregnant Workers Fairness Act (“PWFA” or the “Act”) requires covered employers to provide reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.

Enforcement of the law falls to the U.S. Equal Opportunity Employment Commission (EEOC), which has posted Frequently-Asked-Questions as well as a 40-minute What Employers Need to Know Webinar. The text of the law is available here.

What employers and employees are covered by the FWPA?

The law applies to private and public sector employers with at least 15 employees, including Congress, Federal agencies, employment agencies, and labor organizations.

The protections of the law apply to “qualified employees,” which, as noted in the definition below, includes both applicants and employees.

What does the FWPA require?

The FWPA requires covered employers to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

Key Definitions

Under the Act a “known limitation” means a physical or mental condition related to, affected by or arising out of pregnancy, childbirth or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act of 1990 (the “ADA”).  This definition is important because it shows that an employee’s restrictions do not have to rise to the level of a disability under the ADA in order to trigger an employer’s obligation.

The Act says that the terms “reasonable accommodation” and “undue hardship” have the meanings that are given to these terms under the Americans with Disabilities Act of 1990 and shall be construed as such terms are construed under the ADA, including with regard to the interactive process that will typically be used to determine an appropriate reasonable interpretation.

Employers must also note that EEOC is required to issue regulations relating to this law not later than Dec. 29, 2023, including examples of reasonable accommodations that might address known limitations related to pregnancy, childbirth, or related medical conditions, but the Commission hasn’t done so yet.  This delay in rulemaking does not delay the June 27 effective date, but it will be important to monitor the rulemaking process when it begins.

In the meantime, this EEOC Frequently Asked Questions page identifies examples of possible reasonable accommodations employers might consider, including the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

The definition of “qualified employee” has two parts:  First, it means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.  Second, an employee or applicant shall be considered qualified if— (A) any inability to perform an essential function is for a temporary period; (B) the essential function could be performed in the near future; and (C) the inability to perform the essential function can be reasonably accommodated.  The second part of the definition of “qualified employee” creates an exception to the first part and, as a result, the PWFA goes beyond the ADA, which requires accommodation to the extent an individual can perform the essential functions of the position in question.

Other Unlawful Employment Practices

In addition to stating that it is unlawful for a covered employee not to make accommodations to the known limitations of a qualified employee (absent undue hardship), the PWFA specifies that it is an unlawful employment practice for an employer to:

• require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;
• deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee;
• require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or
• take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

Enforcement

The EEOC will use the same procedures as it uses for Title VII of the Civil Rights Act and the ADA.  An aggrieved individual would file a charge with the EEOC or a State fair employment practices agency, indicating that an employer has engaged in an unlawful practice.  When the individual has exhausted that pathway, she may bring a private action against her employer, seeking damage or injunctive relief.

Additional Information is Available

Employers should review their policies to ensure they reflect the requirements of the PWFA.  The EEOC has posted several resources concerning these issues, including frequently asked questions, an overview webinar for employers, tips for employees requesting reasonable accommodations, as well as informational posters employers may utilize.