Expect Change: A Closer Look at the Pregnant Workers Fairness Act

Tue, Oct 31st, 2023 | by Miles Mediation and Arbitration | Article | Social Share

By Donna V. Smith

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, went into full effect on June 27, 2023. The Equal Employment Opportunity Commission (EEOC) enforces the PWFA, and it began accepting Charges of Discrimination under the PWFA on June 27, 2023.

On August 11, 2023, the EEOC published its proposed regulations for the PWFA in the Federal Register. Public comment was open through October 11, 2023, and final regulations are due to be published by December 29, 2023. In the interim, employers are obligated to comply with the law even though final regulations have not been published. Nonetheless, the proposed regulations serve as a useful guide for EEOC enforcement position at this time. In this article, I’ll take a closer look at the PWFA and how it is likely to affect employers and workers (I use “workers” instead of employees as the act applies to both employees and applicants).

Pregnancy as a Protected Status

It is worth noting also that the PWFA does not operate in a vacuum. Federal law, state, and local laws also protect pregnancy as a protected status, with differing thresholds for coverage and interpretations. Pregnancy-related disabilities are also covered under the Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA) concerns overlap as well. Lastly, while the employer had certain obligations under the Fair Labor Standards Act (FLSA) for years relative to break time and space for an employee to pump breast milk, those rules (and most importantly) the damages for violations of the FLSA have been substantially amended effective April 28, 2023. I’ll touch on these related issues, but this article is primarily focused on the PWFA.

Expanded Coverage for Pre- and Post-Partum Conditions

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 ADA. For example, the PWFA requires that an employer accommodate “known limitations,” which is broader than the definition of a disability under the ADA.

Specifically, a “known limitation” is a limitation that the worker or the worker’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 her health or the health of her 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.

Communicating the Limitation

Like other federal accommodation laws, the worker 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. Proof of knowledge will be an issue, and communication of a limitation to lower-level supervisory staff may trigger this knowledge component leaving employers quite surprised that their obligation to accommodate has been triggered by a passing comment, such as “my feet are swollen” or “I had a rough morning with nausea.” While the goal of inclusion, and removing barriers to accommodation is laudable, the realities of meeting one’s obligations under the Act may prove very difficult indeed. As I will discuss later, this is where training supervisory staff and workers is vital.

The EEOC expects that the determination of whether there is a “known limitation” will be accomplished through the “interactive process” without the need for documentation or verification. The concept of “interactive process” or a dialogue between the employer and worker is familiar to employers and workers as it is a cornerstone of the ADA. However, the ADA allows for and anticipates the need for documentation and verification.

It is hard to believe that this process will be a straightforward as the EEOC suggests. Just consider the depth and breadth of litigation over this very issue under the ADA. Central to any discussion of the PWFA is recognition that the act extends far beyond a current pregnancy known to the employer which presents possible disabling conditions. One can wrap one’s head around accommodating a known pregnancy and known limitations. However, “pregnancy” is defined to include “past pregnancies” and “potential or intended pregnancies.” Again, given the breadth of the ADA decisions, where will the employer draw the line — or where must the employer draw the line — in asking questions about an employee’s history or expectations regarding pregnancy? As with disability claims, the need to protect confidential information, and the risk of asking too few (or not enough) questions remains an issue to appropriately address.

By way of example, the proposed rule also gives examples of “related medical conditions” such as termination of pregnancy; infertility and fertility treatment; anxiety; depression, psychosis, or postpartum depression; menstrual cycles; use of birth control; and lactation and conditions related to lactation.

Expanded Protection for Qualified Workers  

The PWFA, like the ADA, protects “qualified” employees or applicants who, with or without reasonable accommodation, can perform the essential job functions of their job, with or without accommodation.

In addition, the PWFA expands “qualified” to include those who cannot perform one or more essential job function if: (1) the inability to perform the essential function(s) is for a “temporary period”; (2) the essential function(s) can be resumed “in the near future”; and (3) the inability to perform the essential function(s) can be reasonably accommodated.

The EEOC’s Proposed Regulations define “in the near future” as generally 40 weeks. This does not mean the job function must be suspended for 40 weeks and it depends on the worker’s needs. There is also an indication that the 40-week period would restart each time the worker requests an accommodation related to the temporary suspension of a job function. So, for example, if a pregnant worker cannot lift over 25 pounds before childbirth and seeks a temporary suspension of that job requirement (for 26 weeks), and then returns from maternity leave, and requires the same accommodation due to pregnancy related conditions/recovery, for 26 weeks this time as well, the total time for the suspension of the job function could easily exceed 40 weeks total. There is also an indication that the employer is allowed to temporarily reassign the function but is unclear regarding the duration, and other logistical aspects of that decision. The EEOC has asked for public comment on setting a cap, such as 52 weeks, for a “temporary assignment” of job duties.

Defining “Reasonable” Accommodations

The proposed regulations also provide a range of examples which would meet the standard of “reasonable accommodation” under the PWFA such as more frequent breaks, sitting/standing, schedule changes, part-time work, working from home, job restructuring, and temporarily suspending job functions. Interestingly, the EEOC asked for public comment as to whether more examples would be helpful.

To revisit this issue: reasonable accommodations may include but are 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.

I am stressing this aspect of the PWFA because it is very different than the obligations under the ADA. 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 regulations set forth the following four specific accommodations as per se reasonable and presumptively not an undue hardship:

• allowing a worker to carry water and drink, as needed, in her 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.

Note that the accommodation of temporarily suspending an essential job junction is not generally viewed as a reasonable accommodation under the ADA and in fact is at the far end of the spectrum courts have considered in reviewing the reasonableness of the accommodation requested. Employers and workers will need to be prepared to show whether there are other employees who can assume the job functions; whether there are temporary employees available or used in other situations; or whether the employer has a reasonable option to hire someone to assume the duty and if so under what circumstances — and also, whether an essential function can be postponed or remain unperformed for any length of time. I would suggest a review of what is standard in an industry will be part of the evaluation.

And, because this expanded obligation exists as to pregnancy-related conditions or status, and not medical conditions across the board, prior strategies to show if the requested accommodation was offered for others with a disability generally will not rule the day. Curiously, a disabled person with a non-pregnancy disability may be tempted to point to the broader accommodation for pregnant workers, even if the ADA does not specifically require that the employer make the accommodation for “temporary” conditions (or up to 40 weeks at least) as a way to show that a temporary reassignment is not unreasonable, even though it is not required, as evidenced by the response to a pregnancy condition. This could turn the argument that a “short term” leave or short-term reassignment of work under the ADA is in fact reasonable.

Please note that the proposed regulations also prohibit employers from requiring a qualified employee to take a leave, paid or unpaid, if another reasonable accommodation can be provided which would allow the employee to keep working. Lastly, while the term remains undefined, “an unnecessary delay” in responding to a request for accommodation may result in a PWFA violation.

A Closer Look at the Interactive Process

The proposed regulations prohibit an employer from having a blanket requirement that a worker requesting an accommodation be examined by a healthcare provider selected by the employer. The employer may request supporting documentation reasonable under the circumstances, in order to determine whether to grant the accommodation. Further, the employer is encouraged to offer interim accommodations while the worker responds to a reasonable request for documentation. One would assume then that if the requested accommodation is for one of the four “per se” reasonable accommodations, little if any support is required other than that which establishes or describes the physical or mental condition; that is related to affected by, or arising out of pregnancy, childbirth, or related medical condition; and that a change or adjustment at work is needed.

For example, 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 she is 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, then those accommodations must generally be granted.

The PWFA includes a few more provisions which are not new concepts in the world of disability discrimination law, including:

• Interactive process: The employer cannot require a worker to accept an accommodation without a discussion about the accommodation between the worker and the employer;
• Applicant/career development: An employer cannot deny a job or other employment opportunity to a qualified worker based on the person’s need for a reasonable accommodation;
• No forced leave: Forced leave is not a reasonable accommodation when another reasonable accommodation can be provided that would let the worker keep working;
• No retaliation: The PWFA prohibits retaliation against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); and
• No interference: It is a separate cause of action if the employer interferes with any individual’s rights under the PWFA.

The PWFA and Other Laws and Policies

As mentioned above, the PWFA does not operate in a vacuum or replace a worker’s rights under other existing laws, including but not limited to the ADA, Title VII of the Civil Rights Act, FMLA, the PUMP Act (which broadens workplace protections for employees to express breast milk at work), or other applicable state and local laws. While there are many open questions and there will be undoubtedly more or different questions when the final regulations are published, the extensive protections and new terminology incorporated in this Act will provide fertile ground for litigation. The best approach then is to be proactive and communicate and train staff and employees to respond to these changing legal times. Policies need to be revised; revamping the interactive process and documentation requirements is key; and consideration should be given to PWFA specific forms and processes.

It is also highly likely also that the PWFA will impact non-pregnancy related medical condition analysis in the workplace and by the courts. 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. If the event of a claim, alternative dispute resolution (ADR) options like mediation should be considered to address these issues earlier rather than later.

About Donna V. Smith

Donna Smith is a highly effective mediator and arbitrator who has enjoyed a 35 year-long career in the field of labor, employment, and business law.

As an attorney, Donna represented both employers and employees at highly acclaimed law firms. Her vast experience on both sides of the table uniquely impacts the dialogue between parties who are navigating solutions to resolve their disputes. As a mediator, her clients praise her demeanor, patience, and commitment to roll up her sleeves to keep working through even the most unusual challenges.