The Pregnant Workers Fairness Act (PWFA) officially became effective on June 27, 2023. The United States Equal Employment Opportunity Commission (EEOC) released its definitive rules for enforcing this legislation on April 15, 2024, which will be applicable starting June 19, 2024.
Overview of the Pregnant Workers Fairness Act
The PWFA mandates that employers covered by the Act provide reasonable accommodations to employees or job candidates who have limitations stemming from pregnancy, childbirth, or associated medical conditions, provided such accommodations do not impose undue hardship on the business' operation.
This Act pertains explicitly to reasonable accommodations and does not supersede other EEOC-enforced regulations against discrimination based on pregnancy or childbirth. It also does not negate more stringent state, local, or federal laws offering greater worker protection.
Which employers does the PWFA apply to?
The PWFA applies to public and private sector employers with 15 or more employees, including federal agencies, Congress, employment agencies, and labor organizations.
Protection Under the PWFA
The law supports reasonable accommodations for eligible employees and candidates who experience physical or mental limitations due to pregnancy, childbirth, or related conditions. Under the PWFA, a 'limitation' includes any condition that directly stems from, or is affected by, pregnancy and childbirth.
Prohibitions Under the PWFA
Employers are prohibited from:
- Failing to provide reasonable accommodations unless it would result in undue hardship.
- Forcing an employee to accept an unwanted accommodation.
- Denying employment opportunities based on the need for reasonable accommodations.
- Requiring an employee to take leave if another reasonable accommodation is feasible.
- Retaliating against an individual for requesting or utilizing an accommodation, or for participating in related legal proceedings.
- Coercing individuals engaging in their rights under the PWFA.
Interaction with Other Federal Laws
Other significant laws include:
- Title VII, which prevents discrimination based on pregnancy and mandates equal treatment for employees similarly affected in their ability or inability to work.
- The Americans with Disabilities Act (ADA), which safeguards against disability discrimination and requires accommodations unless they cause undue hardship.
- The Family and Medical Leave Act (FMLA) provides eligible employees with unpaid, job-protected leave for specific family and medical reasons.
- The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), enhancing protections for nursing mothers at work.
What Constitutes a 'Reasonable Accommodation'?
Reasonable accommodations might involve modifications to work schedules, job duties, physical changes to the workplace, or policy adjustments that support the employee's needs. These can range from more frequent breaks, alterations to seating arrangements, flexible work hours, or temporary reassignments.
Some examples of possible reasonable accommodations under the PWFA include:
- Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
- Changing food or drink policies to allow for a water bottle or food;
- Changing equipment, devices, or workstations, such as providing a stool to sit on or a way to do work while standing;
- Changing a uniform or dress code or providing safety equipment that fits;
- Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
- Telework;
- Temporary reassignment;
- Temporary suspension of one or more essential functions of a job;
- Leave for health care appointments;
- Light duty or help with lifting or other manual labor; or
- Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.
This list provides some examples; many other reasonable accommodations may exist. Also, a worker may need different accommodations at different times during the pregnancy or after childbirth.
Defining 'Undue Hardship'
An employer is not obligated to implement a reasonable accommodation if it would result in significant difficulty or expense, termed as 'undue hardship.'
Definition of a 'Qualified Employee' or Applicant
An employee or applicant can be “qualified” under the PWFA in two ways.
An employee or applicant who can perform the “essential functions” of the job with or without a reasonable accommodation is qualified. “Essential functions” are the fundamental duties of the job.
Many employees or applicants seeking accommodations will meet this part of the definition because they can perform the job or apply for the position with a reasonable accommodation—for example, the cashier who needs a stool, the production worker who needs additional bathroom breaks, or the retail worker who needs to carry around a bottle of water.
However, suppose an employee cannot perform the essential functions of the job with or without a reasonable accommodation. In that case, an employee can be qualified even if they cannot do the essential functions of their job as long as:
- The inability is “temporary";
- The employee could perform the functions “in the near future”; and
- The inability to perform the essential functions can be reasonably accommodated.
This means that an employee who is temporarily unable to perform one or more essential functions of their job and who therefore needs light duty or a change in their work assignments may be able to get such a change as a reasonable accommodation.
Known Limitations and Employer Responsibilities
Under the PWFA, “known” means the employee or the employee’s representative (or the applicant or the applicant’s representative) has communicated to the employer about the limitation.
Under the PWFA, “limitation” means “a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”
A limitation can be an impediment or problem that is minor or modest and can be episodic (such as migraines or morning sickness).
It can be that the employee or applicant needs to take actions for their health or the health of their pregnancy—such as not being around certain chemicals, not working in the heat, or limiting or avoiding certain physical tasks, for example, lifting, bending, walking, standing, or running.
It can be that the employee needs to attend health care appointments for the pregnancy, childbirth, or related medical condition itself.
What is included in “pregnancy, childbirth, or related medical conditions”?
The term "pregnancy, childbirth, or related medical conditions" encompasses a variety of circumstances, including normal pregnancies, vaginal and cesarean deliveries, miscarriages, postpartum depression, edema, placenta previa, and lactation. For further examples, reference is available in the specific regulation here: https://www.federalregister.gov/d/2024-07527
How can workers request reasonable accommodations, and how should employers respond?
To request reasonable accommodations, employees or applicants should inform their employer about any physical or mental conditions arising from pregnancy, childbirth, or related conditions, and express the need for changes in their work environment.
For instance, an employee could explain difficulties arriving on time due to morning sickness, or the need for more frequent restroom breaks due to pregnancy.
Upon receiving a request, employers should engage in an "interactive process" which involves open communication with the employee about the requested accommodations. If accommodating does not overly burden the business, employers are generally required to provide a reasonable adjustment, either as requested by the employee or an effective alternative.
Employers should remember several key points about the Pregnant Workers Fairness Act (PWFA) and reasonable accommodations:
- Supervisors should be trained on the PWFA to handle requests appropriately and prevent retaliation.
- Employees do not need to use specific terminology to initiate accommodation requests.
- Some accommodations might be minor, especially with uncomplicated pregnancies, and should be easily provided.
- Accommodation needs may change as pregnancy progresses, following childbirth, or as any related conditions evolve.
- The Job Accommodation Network (JAN) offers free, expert, and confidential advice on reasonable accommodations (https://askjan.org/).
Can employers require that the employee or applicant provide information from the employee’s health care provider about the limitation?
In many instances under the PWFA, a discussion with the applicant or employee may be sufficient and supporting documentation will not be needed. Employers also should keep in mind that it may be difficult for a worker to obtain information from a health care professional early in pregnancy.
Although an employer is not required to seek medical information from an employee’s health care provider, the employer may seek information from the employee’s health care provider under limited circumstances. An employer may not require that the employee seeking the accommodation be examined by a health care provider selected by the employer.
First, seeking documentation must be reasonable under the circumstances for the employer. It is not reasonable if:
- The limitation and need for an adjustment or change at work due to the limitation is obvious. For example, an obviously pregnant employee who seeks a bigger uniform because of their pregnancy cannot be required to provide additional information.
- The employer already knows about the limitation and the adjustment or change at work due to the limitation. For example, if the employee has already provided enough information that they have morning sickness due to pregnancy and need a later start time, the employer cannot demand a new doctor’s note every time the employee uses the accommodation of coming in later.
- The employee is currently pregnant and needs breaks for the bathroom, needs to carry water with them to drink, or needs to stand if their job requires sitting, or needs to sit if their job requires standing.
- The employee is lactating and needs modifications to pump at work or nurse during work hours.
- The employer would not ask an employee for documentation in that situation normally. If an employer’s policy is that employees only need a note from a health care provider for absences if they are missing 3 or more days in a row, the employer can’t require someone who needs a reasonable accommodation of 1 day off because of pregnancy, childbirth, or a related medical condition to provide information from the health care provider.
If the employer is allowed to get documentation from a health care provider, the employer is limited to documentation that:
- Confirms the physical or mental condition. This means providing a simple statement of the physical or mental condition (e.g., back injury, swollen ankles, need to avoid certain chemicals, lifting restriction, need for rest, vomiting, need to attend health care appointments). This can be a modest or minor impediment or problem and does not need to be a medical diagnosis;
- Confirms that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Pregnancy, childbirth, or related medical conditions do not have to be the sole, the original, or a substantial cause of the physical or mental condition. Together, the information set forth in this paragraph and the prior paragraph constitute the employee’s “limitation” for purposes of coverage under the PWFA (see definition in Question 11); and
- Describes the adjustment or change at work that is needed due to the limitation (for example, no lifting more than 20 pounds for 3 months, the approximate number and frequency of health care appointments, the estimated time off for recovery, additional safety gear, work functions that should be suspended and for how long, or a later start time).
Under the Americans with Disabilities Act (ADA), employers must keep medical information confidential. That applies to documentation gathered under the PWFA as well.
Resource: https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act
