Pregnant Workers Fairness Act (and EEOC Regulations)
By attorney Nicole Croddick, Esq.
May 23, 2024
The Pregnant Workers Fairness Act (“PWFA”) was passed by Congress in December 2022 with an effective date of June 2023. The goal of this much anticipated law was to provide more robust protection for pregnant employees in comparison to the existing federal 1978 Pregnancy Discrimination Act. This increase in protection includes the availability of far more workplace accommodations for covered employees. It is noteworthy that the PWFA does not replace more protective state or local laws or applicable workplace policies.
The Equal Employment Opportunity Commission (“EEOC”) is the federal agency that enforces the PWFA and other employment laws and regulations. As such, on April 15, 2024, the EEOC published helpful and comprehensive regulations and needed clarifications regarding the applicability, enforcement and interpretation of this new law. The regulations will be effective in June 2024. The EEOC regulations also include much needed relevant definitions. The EEOC’s regulations also provide practical advice for both employees and employers. The regulations take an expansive view of what would be considered (by law) “conditions related to pregnancy.” The regulations clarify that fertility treatments; abortion and post-childbirth complications would fall under the PWFA’s definition of “conditions related to pregnancy.”
As mentioned, under the PWFA and the corresponding regulations, pregnant employees are now afforded the legal right to a wide range of accommodations at work which will significantly and positively impact workplace cultures for millions of Americans. Many supporters of the law opine that the population that will be most affected by the new EEOC regulations are pregnant women in low-wage jobs which equates to about 1.5 million employees annually. PWFA must be followed by employers who have 15 or more employees.
PWFA provides workplace accommodations to qualified employees that experience limitations related to, affected by, or arising out of pregnancy, childbirth or other related medical conditions. The EEOC noted that the inquiry as to whether or not a condition constitutes “pregnancy, childbirth, or related medical conditions” will be guided by existing precedent under Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act. As such, PWFA mandates that covered employers provide “reasonable accommodations” for known limitations related to pregnancy, childbirth or related medical conditions unless such accommodation would cause the employer an “undue hardship.”
In contrast to PWFA, the 1978 Pregnancy Discrimination Act required covered employers only to treat pregnant employees the same as any other (non-pregnant) employees. Typically, under this law, numerous pregnant employees bore the difficult burden of demonstrating that they had physical limitations, under the Americans with Disabilities Act. PWFA makes clear that pregnancy and related conditions must be afforded “reasonable accommodations” and also that it is employers that now bear the burden of demonstrating “undue hardship” whenever they deny such an accommodation request.
As previously mentioned, the EEOC adopted rules include a robust expansion of conditions related to pregnancy and childbirth which now include abortion, fertility treatments and birth control and consider such conditions as medical issues that require job protection. The new rules also offer guidance for managing common challenges related to pregnancy which include physical limitations (heavy lifting); morning sickness; more frequent urination; and back and body pain. Although abortion is now covered under the new law, employers do not have to cover abortion related expenses nor must they provide health insurance that covers abortion procedures.
The regulations clarify that affected workers can get unpaid time off for prenatal doctor visits; abortion; miscarriage; postpartum depression; mastitis; infection related to breastfeeding; fertility treatments; and the like. This is particularly important for those employees who are not covered by federal family leave laws and those employees who do not have any accrued paid time off. Some accommodations that were mentioned include: flexible working hours or arrangements for morning sickness and other pregnancy related conditions; convenient parking areas; appropriately sized (maternity sized) uniforms and safety apparel; the providing of exemptions or from burdensome physical tasks (climbing, long term standing or lifting); the option to work from home; permission to bring snacks or drinks to work where normally prohibited; availability of needed schedule changes; the possibility of more frequent bathroom, rest and eating/drinking breaks; the opportunity for post-birth leave; and consideration for temporary work reassignment. The regulations provide the opportunity for the employee, that may be requesting an exemption from certain tasks that are considered “essential functions” of their job, to request a temporary exemption from such tasks during pregnancy (such as heavy lifting).
It is noteworthy that similar to any other request for “reasonable accommodations,” the “interactive process” is key for all involved parties. Employers and employees would be wise to document the process and procedure. The regulations make clear that it should not be difficult for the employee to request accommodations and also that such request: does not have to be in a specific format (oral / written); does not have to have specific language (words / laws / policies); and does not always have to include medical documentation. It is also important for employers to promptly respond to such accommodation requests. As with other accommodations, employers do not have to accommodate workers in the way that they would like to be accommodated but must offer reasonable options for the accommodation request. Also, employers are not permitted to deny an accommodation without proving “undue hardship” which is a high burden from a legal standpoint. Finally, employers may not require affected employees to take unpaid leave if an alternative reasonable accommodation is feasible.
The Statute of limitations for lodging complaints with EEOC is 180 days but can be extended in certain jurisdictions. Many believe that the effectiveness of the law and regulations will depend on not only enforcement but also awareness.
For now, employers and employees must be aware of, and be ready to implement, PWFA, and related regulations. Covered employers must ensure that their policies and procedures comply with PWFA and also must read this new law in tandem with related state and local laws. Finally, human resource professionals are tasked with strictly complying with the requirements of the new law and regulations; the reasonable accommodations process; and not easily relying on an accommodations denial based on “undue hardship.”
