The Pregnant Worker Fairness Act (PWFA) became effective June 27, 2023. The implementing regulations by the EEOC were promulgated on June 18, 2024. It covers employers with 15 or more employees. The PWFA requires a covered employer to provide a “reasonable accommodation” for a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”
No magic words are needed to invoke the PWFA by employees. They could say something as simple as:
- “I’m having trouble getting to work at my scheduled starting time because of morning sickness.”
- “I need more bathroom breaks because of my pregnancy.”
- “I need time off from work to attend a medical appointment because of my pregnancy.”
Employers would violate the PWFA if they:
- Fail to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship;
- Require an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
- Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Punish or retaliate against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation);
- Coerce individuals who are exercising their rights or helping others exercise their rights under the PWFA.
Employers need to treat a PWFA request similar to an ADA request and have an interactive process to identify appropriate accommodations. 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.
- And more.
An employer does not have to provide a reasonable accommodation under the PWFA if it causes the employer an undue hardship. “Undue hardship” means significant difficulty or expense.
“Pregnancy, childbirth, or related medical conditions” includes uncomplicated pregnancies, vaginal deliveries or c-sections, miscarriage, postpartum depression, edema, placenta previa, and lactation. There are more examples in the regulation at https://www.federalregister.gov/d/2024-07527.
There have been lawsuits filed by the EEOC
- A company denied a pregnant employee’s accommodation request to transfer to a role that did not require lying on her stomach. Instead, the company forced her to take unpaid leave and ultimately gave her no choice but to return to her position without modification. The company’s decision to deny the accommodation request caused her to fear for the health of her pregnancy, and she resigned nearly eight months pregnant.
- A pregnant worker requested maternity leave with the expectation that she would resume employment after giving birth. When she attempted to return to work, she was told that no work was available. However, the employer hired new, non-pregnant employees before and after her attempted return.
- An employer refused to excuse an employee’s absences for pregnancy-related conditions and medical appointments and required her to work mandatory overtime despite knowing that her physician had restricted her from working over forty hours per week during her pregnancy. Because of her pregnancy-related absences, the company assessed attendance points against her and warned that she would be terminated if she acquired another point.
- A medical practice did not allow a medical assistant at its facility to sit, take breaks, or work part-time as her physician said was needed to protect her health and safety during the final trimester of her high-risk pregnancy. Instead, the practice forced her to take unpaid leave and refused to guarantee she would have breaks to express breastmilk. When she would not return to work without those guaranteed breaks, she was terminated.
The PWFA is a complicated law given the expectations placed on employers with the understanding that the requirement of the ADA of being able to do the essential functions of the job is suspended during pregnancy. Time off can be considerable. When a situation arises, employers should discuss appropriate next steps with legal counsel to stay clear of trouble.
By Anthony Kaylin, courtesy of SBAM-approved partner, ASE. Source: EEOC
Click here for more News & Resources.