What to expect (from the Pregnant Workers Fairness Act) when you’re expecting

Close up of pregnant business woman working.

Since 1978, Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act, has prohibited discrimination on the basis of pregnancy, childbirth and related medical conditions. However, for 45 years, the landmark law fell short of specifically addressing a pregnant or postpartum employee’s need for special accommodations while working on the job.

Until now.

The Pregnant Workers Fairness Act (PWFA), which took effect on June 27, 2023, expands employment protections to pregnant and postpartum workers by requiring employers to make reasonable accommodations to “known limitations” related to pregnancy, unless the employer can demonstrate an undue hardship. Employers must engage in an interactive process regarding an accommodation.

The PWFA defines a “known limitation” as any physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee has communicated to the employer, “whether or not such condition meets the definition of disability” under the ADA. The PWFA’s pregnancy accommodation protection is in addition to the protections of Title VII, which already prohibits pregnancy discrimination and requires employers to treat a worker affected by pregnancy in the same way as other workers with light duty restrictions. Indeed, the PWFA was the result of broad bipartisan support, as it recognized the gap in federal legal protections (including those under Title VII, the Americans with Disabilities Act, and the Family and Medical Leave Act) for those workers affected by pregnancy, childbirth, and related medical conditions.

The EEOC’s proposed regulations for implementing the PWFA are scheduled for publication in the Federal Register today, August 11, 2023, and now the public has until October 10, 2023, to provide their comments. After the comment period closes, the EEOC will have an additional period of time in which to issue final regulations. It is expected these rules will be official by the end of 2023.

Proposed rule highlights

Notable guidance from the EEOC’s proposed rules include the following:

  • The PWFA covers medical conditions related to childbirth and pregnancy that are modest, minor, and/or episodic in nature, and further includes those conditions that are exacerbated by pregnancy or childbirth, such as high blood pressure, anxiety, or carpal tunnel syndrome.
  • The condition does not have to be severe or rise to the level of a disability to qualify for accommodation under the PWFA.
  • The PWFA covers a worker’s ability to seek health care related to the pregnancy, childbirth, or condition.
  • Workers may seek accommodations such as job restructuring; part-time or modified work schedules; more frequent breaks; acquisition or modification of equipment, uniforms, or devices; allowing seating for jobs that require standing or standing in jobs that require sitting; appropriate adjustment or modification of examinations or policies; permitting the use of paid leave (whether accrued, short-term disability, or another type of employer benefit) or providing unpaid leave, including to attend healthcare-related appointments and to recover from childbirth; assignment to light duty; telework; and, accommodating a worker’s inability to perform one or more essential functions of a job by temporarily suspending the requirement that the employee perform that function, if the inability to perform the essential function is temporary and the worker could perform the essential function in the near future.
  • Whether a physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions usually will be obvious. For example, if an employee is pregnant and as a result has pain when standing for long periods of time, the employee’s physical or mental condition (e.g., pain when standing for a protracted period) is related to the employee’s pregnancy. An employee who is pregnant and because of the pregnancy cannot lift more than 20 pounds has a physical condition related to pregnancy. An employee who is pregnant and is seeking time off for prenatal health care appointments is attending a medical appointment related to the pregnancy. An employee who requests an accommodation to attend therapy appointments for postpartum depression has a mental health condition related to pregnancy and is obtaining health care for that condition.
  • As with the ADA, to request an accommodation, an employee or applicant may use plain language and need not mention the PWFA; use the phrases “reasonable accommodation,” “known limitation,” “qualified,” “essential function;” use any medical terminology; or use any other specific words or phrases. As an example, an employer would be obligated to take action if a pregnant employee tells her supervisor, “I’m having trouble getting to work at my scheduled starting time because of morning sickness.” Morning sickness is a physical condition related to pregnancy that impedes a person’s ability to eat and drink and requires her to have ready access to a bathroom. In this example, the employee has identified a change needed at work (i.e., a change in her work schedule). As such, the employer should treat this as a reasonable accommodation under the PWFA.
  • The “interactive process” required under the PWFA largely mirrors the interactive process required by the ADA. When an employee with a known limitation has requested a reasonable accommodation regarding the performance of her job, the employer, using a problem-solving approach, should:
    1. Analyze the particular job involved and determine its purpose and essential functions;
    2. Consult with the employee to ascertain what kind of accommodation might be necessary;
    3. In consultation with the employee, identify potential accommodations and assess the effectiveness each would have in enabling the employee to perform the essential functions of the position. If the employee’s limitation means that they are temporarily unable to perform one or more essential functions of the position, the parties must also consider whether suspending the performance of one or more essential functions may be a part of the reasonable accommodation if the known limitation is temporary in nature and the employee could perform the essential function(s) in the near future (within generally 40 weeks); and
    4. Consider the preference of the employee to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

Employers may make comments on the proposed rules until October 10, 2023. In addition, employers should consult with legal counsel when presented with requests for accommodations related to pregnancy, childbirth, and related conditions, as well as consider whether PWFA training is necessary for the HR professionals who will be responsible for handling PWFA compliance and pregnancy-related accommodations. As always, your McAfee & Taft Labor and Employment Group attorneys are here to assist.