The Pregnant Workers Fairness Act (PWFA), which became effective on June 27, 2023, requires covered employers to provide a reasonable accommodation for a qualified employee’s limitations surrounding pregnancy and childbirth unless providing the accommodation would result in an undue hardship for the employer. Covered employers and employees are those that meet the statutory definition of employee or employer under Title VII of the Civil Rights Act, the Congressional Accountability Act of 1995, the Government Employee Rights Act of 1991, or Section 717(a) of Title VII (for federal employees). For the PWFA to be enforceable, the employer must retain fifteen or more employees.
What Sort of Limitations Are Covered?
Under the PWFA, a “limitation” refers to any physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or a related medical condition. It can be minor or severe, episodic or continuous, and encompasses needs related to maintaining the health of the employee or pregnancy, as well as seeking healthcare related to pregnancy or childbirth. Importantly, the employee’s condition does not have to meet the Americans with Disabilities Act (ADA) definition of “disability” for the condition to qualify as a limitation under the PWFA.
What Constitutes an “Undue Hardship”?
The PWFA uses the ADA’s definition of “undue hardship,” meaning a significant difficulty or expense for the employer. The PWFA and ADA provide factors to consider when determining whether an undue hardship exists. These factors comprehensively examine the structure of the business and include:
- The nature and cost of the accommodation;
- The overall financial resources of the facility involved in providing the reasonable accommodation, the number of employees, and the effect on expenses, resources, and operations;
- The overall financial resources of the covered entity, the size of the business, and the number, type, and location of its facilities; and
- The type of operation of the covered entity, including the workforce’s composition, structure, and function.
If, using these factors, providing an accommodation would result in significant difficulty or expense to the employer, an “undue hardship” exists.
Status of Litigation
Several state attorneys general have contested enforcement of the PWFA, particularly the Equal Employment Opportunity Commission’s (EEOC) final rule interpreting the PWFA to include abortion-related accommodations.
After the EEOC’s final rule was issued on April 15, 2024, attorneys general from seventeen states filed a lawsuit in Arkansas challenging the rule. The attorneys general asked that the Court issue a preliminary injunction and issue a ruling that the EEOC exceeded its authority when it interpreted the PWFA to include abortion. The district court in Arkansas rejected the request for a preliminary injunction and found that the states lacked standing to contest the EEOC’s final rule. The case is pending appeal in the Eighth Circuit, with arguments scheduled for September 2024.
In the meantime, on June 17, 2024, the United States District Court for the Western District of Louisiana issued a preliminary injunction against the EEOC’s final rule. This injunction prevents the EEOC from enforcing its final rule, which requires employers in the states of Louisiana and Mississippi to provide abortion-related accommodations pending the final outcome of the litigation, on the basis that the EEOC exceeded its authority when it issued its final rule.
Advice to Employers
Notwithstanding the ongoing legal challenges and varying court rulings, employers should carefully adhere to the PWFA’s requirements:
Provide a reasonable accommodation.
Employers must make reasonable accommodations for employees or applicants experiencing pregnancy-related limitations. The accommodation must be reasonable—employers should not compel employees to accept an accommodation that is not reasonable under the circumstances. The accommodation should allow the employee to perform at the same level or enjoy the same benefits as similarly situated employees without limitations. The PWFA provides examples of reasonable accommodations, including additional breaks, the ability to sit while working, time off for healthcare, and recovery time for miscarriage or childbirth.
Do not refuse an employee a job or opportunity based on their accommodation request.
Employers should not refuse to hire a qualified employee who is experiencing a limitation related to pregnancy or childbirth. If an employee asks for an accommodation related to pregnancy or childbirth, one must be provided unless it will significantly burden the employer.
Do not delay in providing the accommodation.
Timely accommodation provision is crucial. Employers should not delay providing reasonable accommodations to employees. An unnecessary delay could be a violation of the PWFA, regardless of whether the accommodation was eventually provided.
Do not require an employee to take leave.
Employers cannot require an employee to take leave, even if it is paid if another reasonable accommodation is available and would not cause undue hardship – this is prohibited under the PWFA.
Avoid retaliation or coercion.
The PWFA explicitly prohibits retaliation against employees who oppose unlawful practices or participate in PWFA-related investigations. Further, the PWFA prohibits coercion, intimidation, threats, interference, and harassment of individuals who exercise their rights under the PWFA or encourage others to do so.
Bottom Line
By mandating reasonable accommodations for pregnancy-related limitations, the PWFA helps create a more inclusive and supportive work environment. However, the ongoing legal challenges and varying interpretations of the law underscore its implementation’s complexity and evolving nature. Employers must remain vigilant and proactive in complying with the PWFA’s requirements, staying informed about legal developments, and ensuring that their policies and practices align with the law.
Co-written with Andrea Renegar – 2024 Smith Debnam Summer Associate
Andrea Renegar is a 2024 Smith Debnam Summer Associate. She comes to Smith Debnam after recently completing her second year of law school at Campbell University. Andrea earned a Bachelor of Arts in Political Science and English & Comparative Literature from the University of North Carolina at Chapel Hill. Prior to enrolling in law school, she gained experience as a legal Assistant and paralegal..
