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The Pregnant Workers Fairness Act (“PWFA”), which took effect in June of 2023, requires employers with at least 15 employees to evaluate reasonable accommodation requests related to pregnancy, childbirth, and related medical conditions in the same manner as requests based on other disabilities made under the Americans With Disabilities Act (“ADA”).
The EEOC recently released regulations clarifying how the PWFA should be interpreted and implemented by employers, including some significant departures from the ADA. Barring a delay due to court action, the regs are scheduled to take effect on June 18, 2024.
Here are some important provisions employers should be aware of:
The definition of “pregnancy, childbirth or related medical conditions” is very broad and includes things like infertility and fertility treatment; contraception-related procedures; lactation, menstruation, and elected or unelected termination of pregnancy. Postpartum conditions and limitations may also qualify.
The EEOC has declined to set a timeframe relative to a current or recent pregnancy when the protections of the PWFA will apply – whether a particular condition is related to pregnancy or childbirth is a fact-specific determination that will have to be explored through the interactive process between the employer and employee.
The PWFA’s coverage only extends to the medical conditions of the employee in question, however, and not to the child or other parent.
Unlike the ADA, the PWFA covers temporary and episodic medical conditions. Employees may also be deemed qualified for protection under the PWFA even if they cannot perform one or more of the essential functions of their job, so long as the inability is temporary, the employee should be able to perform their essential functions “in the near future,” and the inability to perform the essential functions can be reasonably accommodated. “In the near future” is generally defined as 40 weeks from the start of the temporary suspension of an essential function.
Employers may be required to provide reasonable accommodations to workers with healthy and normal pregnancies; for example, if an accommodation is needed to maintain the employee’s health during pregnancy or to allow the employee to attend check-ups or other scheduled visits.
Employers can request documentation from a medical provider if needed to understand any stated limitations or absences.
Examples of accommodations that may be warranted include providing a reserved parking space, allowing telework/remote work, giving frequent breaks, paid or unpaid leave, schedule changes, job restructuring, and offering light duty assignments.
The same interactive process that is required under the ADA applies to the PWFA; however, it may be harder for employers to deny an accommodation due to undue hardship because of the temporary nature of the medical condition.
Factors that should be considered in assessing hardship include: the length of time the employee will be unable to perform the essential function; whether the essential function can be postponed or remain unperformed for any length of time; and whether a temporary employee can be hired to perform the essential function.
We recommend that covered employers review their handbooks and reasonable accommodation policies before June 18, 2024, to make sure they are in compliance with the PWFA and the new regulations. Additionally, if you receive a pregnancy or childbirth-related accommodation request, we encourage you to contact us so we can help you navigate the process.