On December 9, 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) into law. The Equal Employment Opportunity Commission (EEOC) issued proposed regulations on August 11, 2023, and stakeholders had sixty (60) days to provide comments for consideration. After reviewing nearly 100,000 comments, the final rule has been adopted and was published in the Federal Register on April 19, 2024. While the effective date of the regulations is sixty (60) days from publication, the statute has been in effect since June 27, 2023.
What Accommodations Does the PWFA Require?
The PWFA requires that covered employers provide “reasonable accommodations” to employees and applicants as may be necessitated by pregnancy, childbirth, or related medical conditions unless the employer can demonstrate that such accommodation(s) would cause undue hardship on the operation of the business. Unlike the Americans with Disabilities Act (ADA), the PWFA expressly requires accommodations for pregnancy, childbirth, and/or related medical conditions by “covered employers” (public and private sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations).
Defining “Known Limitations” Under PWFA
The PWFA and ensuing regulations define “known limitations” as a “. . . physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions . . .” This includes current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception), labor, and childbirth. The regulations include a long nonexclusive list of “related medical conditions.” For example, “related medical conditions” include termination of pregnancy via miscarriage, stillbirth, or abortion; ectopic pregnancy; nerve injuries; anemia; endometriosis; sciatica; carpal tunnel syndrome; antenatal (during pregnancy) anxiety, depression, or psychosis; and postpartum depression, anxiety, or psychosis. This is only a sampling of those identified by EEOC as related medical conditions.
Communication of Limitations and Documentation Requirements
To be a “known” limitation, the employee, applicant, or a representative (i.e. family member, friend, union representative, health care provider, or other representative of the employee or applicant) must have “communicated” the limitation to the employer. Notice may be given orally, in writing, or via any other effective means, and an employer cannot require written notice.
An employer should not seek supporting documentation where the limitation and/or the needed accommodation are clear and/or obvious. In such situations, self-report should be sufficient. Pursuant to the regulations, the following are examples of when the requirement of supporting documentation would be prohibited:
- The known limitation and need for accommodation are obvious, and the employee confirms the need through self-attestation.
- The employee or applicant already has provided the covered entity with sufficient information to substantiate that the employee or applicant has a known limitation and that a change or adjustment is needed.
- The employee or applicant is pregnant and needs one of the accommodations set forth by the EEOC as examples of reasonable accommodations (see list below).
- The accommodation is related to a time and/or place to pump at work.
Establishing Reasonable Accommodations
When an employer determines that additional documentation is reasonable under the circumstances, the employer is limited to obtaining only that documentation necessary to describe or confirm the condition and the need for accommodation; however, employers should use extreme caution and obtain fact-specific legal advice before questioning any non-obvious limitations communicated by an employee.
Once a limitation has been identified, the second step will be to determine “reasonable accommodations.” Examples of reasonable accommodations identified by the EEOC include the following:
- Making existing facilities accessible
- Job restructuring
- Part-time or modified work schedule
- Reassignment to a vacant position
- Breaks to use the restroom, eat, drink, and/or rest
- Acquisition or modification of equipment, uniforms, or devices, including those that assist with lifting and/or carrying for jobs that require lifting or carrying
- Modifying the work environment
- Providing seating for jobs that require standing, or allowing standing for jobs that require sitting
- Adjustments or modifications of examinations or policies
- Permitting the use of paid leave or providing additional unpaid leave
- Placement in employer’s light or modified duty program or assignment to light duty or modified work
- Telework, remote work, or change of work site
- Adjustments to allow the employee to work without increased pain or risk to health
- Temporary suspension of one or more essential functions of the job
- Providing reserved parking
- Reasonable accommodations related to lactation (i.e., breaks, space, etc.)
While many of these accommodations may also be considered reasonable accommodations pursuant to the ADA in some circumstances, the temporary suspension of one or more essential functions of the job would not be a reasonable accommodation under the ADA. Under the ADA, it is required that an employee be able to perform all essential functions of his or her job, with or without accommodations. Not so with PWFA, which considers the temporary elimination of one or more essential functions to be a reasonable accommodation.
Predictable Assessments
The regulations further identify what are termed “predictable assessments,” identifying a limited number of simple modifications that should be considered reasonable in “virtually all cases,” including:
- allowing employee to carry or keep water near and to drink as needed,
- allowing employee to take additional restroom breaks, as needed,
- allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed, and
- allowing an employee to take breaks to eat and drink, as needed.
These accommodations should be considered reasonable per se, and the individualized assessment should be particularly simple and straightforward.
FMLA Considerations
When considering leave as an accommodation, employers should be mindful of the Family and Medical Leave Act (FMLA). The FMLA provides for 12 weeks of unpaid protected leave and leave as an accommodation should be counted toward the 12-week period. If an employee needs leave as an accommodation pursuant to the PWFA, the employer should also provide requisite notice pursuant to the FMLA.
Interactive Process and Undue Hardship
Like the ADA, the PWFA requires employers to engage in an “interactive process” when considering an employee’s request for reasonable accommodations. When a request for accommodation is made, the employer and employee must discuss what reasonable accommodations are available to meet the employee’s needs. If an employer can demonstrate that a requested accommodation would impose an undue hardship on the operation of the business, covered employers may not be required to provide the requested accommodations; however, the employer must engage in an interactive process with the employee to consider possible alternatives. Given the specific set of examples provided by the EEOC as listed above, it would be advisable to think creatively and to make every good-faith effort to arrive at a resolution.
To present an “undue hardship” an accommodation would need to create significant difficulty or expense when considered in light of the employer’s financial resources, type of employer, number of employees, and the impact of the accommodation upon the operations of the employer. The “undue hardship” bar is a high one, and employers should proceed cautiously when considering denial of a requested accommodation.
Pregnancy Accommodation Laws in Louisiana
The provisions of the PWFA mostly mirror the Louisiana Pregnancy Law which was enacted in 2021. Therefore, the obligations set forth in the PWFA may not be new to some Louisiana employers. One difference is which employers are considered “covered employers” by PWFA. In Louisiana, employers with 25 or more employees are covered, whereas the federal statute only requires 15 or more employees. Thus, the new federal law will encompass more employers in Louisiana.
Texas Challenges PWFA
Of note, the State of Texas recently prevailed in a challenge to the PWFA. In a 120-page opinion, Judge James Hendrix of the US District Court for the Northern District of Texas ruled on February 27, 2024, that the PWFA was unconstitutional because the Congressional funding package that included the PWFA was passed through the House of Representatives without a constitutional quorum. The court enjoined the EEOC and other federal agencies from enforcing the PWFA against the State of Texas. The injunction does not extend to any private employers or other governmental employers, but others are not prevented from making the same argument. It is anticipated that the federal government will appeal the ruling.
Ongoing Litigation and Support for Employers
Employers should stay tuned as continued litigation surrounding the PWFA is likely.
