Originally published in IRMI’s Fall 2023 issue of Employment Practices Liability Consultant (EPLiC)
By Nick Johnson and Shelby Julien
The Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023, is focused on providing temporary accommodations to pregnant workers with disabilities or limitations related to pregnancy. Although the Americans with Disabilities Act protects workers with disabilities from discrimination in the workplace, the Act does not expressly consider pregnancy to be a disability, so the Act does not always protect workers with disabilities or conditions related to pregnancy. To ensure pregnant workers receive the accommodations they need to continue working, the Equal Employment Opportunity Commission (EEOC) has drafted proposed regulations to guide employers through the more expansive protections of the PWFA.
The PWFA requires covered employers to provide “reasonable accommodations” for qualified employees’ “known limitations” related to pregnancy, childbirth, or related medical conditions unless providing the accommodations would cause undue hardship on the employer’s business operations. For qualified employees to be protected under this Act, they must simply show they are suffering from a “limitation” arising about pregnancy, childbirth, or related medical conditions and that a reasonable accommodation will allow them to continue working without causing an undue hardship on the business operations of their employer.
Besides requiring employers to provide reasonable accommodations, the PWFA also prohibits employers from requiring qualified employees to accept certain accommodations, denying job opportunities to qualified applicants or employees, and retaliating against employees who report the employer’s violations of the Act. The PWFA also does not permit employers to force employees to take leave if a reasonable accom will allow them to continue working.
Who and What Are Protected by the PWFA?
Like the Americans with Disabilities Act (ADA), the PWFA only applies to certain employers. The Act’s language, “covered employers,” refers to employers in the private and public sectors with at least 15 employees and includes federal agencies, labor organizations, and employment agencies. Despite its name, the Act does not only apply to pregnant workers. “Qualified employees” are workers who are trying to become pregnant, are pregnant, have terminated or lost the pregnancy, have given birth, are recovering from birth, and are dealing with related medical conditions. Although “related medical condition” sounds broad, the EEOC provided examples that fall within that category, including miscarriages, stillbirths, abortions, lactation, use of birth control, menstrual cycles, and gestational diabetes. In its proposed rule, the EEOC also mentions explicitly that postpartum depression and fertility-related treatments are two instances in which employers must provide reasonable accommodations if those accommodations would not cause undue hardship.
What Is a Reasonable Accommodation?
After establishing that an employee qualifies for protection under the PWFA, the employer must determine whether the requested accommodation is reasonable or if it would cause undue hardship to the employer’s business operations. The EEOC does not explicitly define “reasonable” in its proposed rules, but it does provide examples of what it deems to be reasonable accommodations. For example, the EEOC states that these accommodations will be considered reasonable in almost every occupation.
- Allowing the employee to have food and water in their work area
- Allowing the employee to sit or stand while working
- Providing closer parking
- Suspending an essential job function
- Allowing more breaks for the employee to eat, drink, and use the restroom
- Providing paid or unpaid leave
- Allowing schedule changes and part-time work
- Allowing remote work
- Providing modified safety equipment and uniforms
The EEOC believes that none of these accommodations should cause undue hardship on the employer’s business operations. However, if the employer believes otherwise, the employer has the burden of proving so.
What Constitutes an Undue Hardship?
The drafters of the PWFA modeled the Act after the ADA, using almost identical language in some circumstances. As a result, “undue hardship” has the same meaning in the PWFA as in the ADA. According to the PWFA, an accommodation imposes an undue hardship if it causes a “significant expense” to the employer’s business or if it causes “significant difficulty” to the operation of the employer’s business.
Under the PWFA, an employer may be required to accommodate a qualified employee’s inability to carry out an essential function of their job by suspending the employee’s responsibility to complete that duty. Employers are more likely to experience undue hardship when an accommodation leaves an essential function of the business operations incomplete. To help employers with their determination of the undue hardship status of a requested accommodation, the EEOC has provided a list of factors that
should be assessed.
- The length of time that the applicant or the employee will be unable to perform the essential function—the shorter the period of time, the less likely that it will be considered to cause significant expense or difficulty
- The nature and the frequency of the essential function determine if the essential function is a task that must be completed daily or is needed only several times a year. If the essential function is a daily task, the employer should contemplate whether the task can remain unperformed for a certain amount of time. If the essential function is not an important daily task, the employer should consider whether its performance can be postponed until the qualified employee no longer needs the accommodation
- Whether the employer has other employees who can perform the essential function, and if not, the employer should assess the plausibility of hiring temporary help
- Whether there is other work that the employee can perform while on temporary leave from their regular job responsibilities
- Whether the employer has accommodated employees in similar situations who were unable to perform their essential job functions with temporary suspension of those essential functions
What Steps Can Employers Take To Ensure Compliance with the PWFA?
Although the changes brought about by the PWFA may seem overwhelming, employers can take several steps to ensure compliance with the EEOC’s rules. However, before discussing the steps, it is important to note that the Act only requires employers to provide reasonable accommodations to qualified employees or applicants with “known limitations.” This means employers are only responsible for providing accommodations to employees who have made their qualifying condition known to the employer and asked them for an accommodation. Employers are not responsible for providing accommodations for conditions about which they do not know, leading to the first step.
- Employers should discuss accommodations with the qualified applicant or employee before starting any accommodation. Employers cannot force an applicant or employee to take an accommodation they do not want or did not ask for. It is best to sit down with the applicant or employee and discuss what accommodation they prefer.
- Employers should update their employee handbooks to reflect the requirements of the PWFA and inform their employees of the changes made to the policy. The updated policy should include specific procedures for reporting conditions, such as who should receive the report. It may also be a good idea to provide a list of available accommodations immediately upon request, such as additional breaks to use the restroom. It is crucial to remember that this Act does not override
any state or local laws that provide more protection to pregnant workers. So, to prevent any violations of state or local laws, employers should research the applicable regulations in their state and county. - Employers should meet with their human resources representatives to discuss the new policies, schedule training sessions for supervisors and managers, formulate a plan for implementing potential accommodations, and estimate how much each potential accommodation may cost.
- If an employee requests an accommodation that is not readily available, the employer should provide the employee with an interim accommodation and a time estimate on the requested accommodation. For example, suppose a pregnant employee asks for a larger uniform shirt, but the employer does not currently have a larger size. In that scenario, the employer should consider allowing the worker to wear an appropriate shirt that fits until the larger uniform shirt arrives.
A great resource to consider is the Job Accommodation Network webpage on accommodating pregnancy-related disabilities.
Last, if an employer believes that an accommodation request is unreasonable or would cause undue hardship to the operations of its business, the employer should contact an attorney before taking any action.
Nick Johnson, Partner
Mr. Johnson is a partner at Berenzweig Leonard and is an experienced litigator representing clients in the full spectrum of employment litigation matters in addition to advising management and executive clients on human resources (HR) compliance, restrictive covenants, employment contracts and HR policies, investigating employee complaints, and conducting antidiscrimination training seminars. He has been recognized in the honorary list of “Legal Elite” in the Washington, D.C., region, and has been regularly selected as one of the Washington Area’s “Rising Stars” by both Virginia and Washington, D.C.’s SuperLawyers.
Shelby Julien, Summer 2023 Law Clerk
Ms. Julien attends The College of William and Mary where she is currently in her third year of law school.