The Pregnant Workers Fairness Act – Three Major Departures from Current Law

By: Hope Comisky

Overview

The Pregnant Workers Fairness Act (“PWFA”), effective June 27, 2023, requires that covered entities provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an undue hardship. (Section 103.) The term “covered entity” includes private and public sector employers with at least 15 employees, as well as federal agencies, employment agencies, and labor organizations. (Section 102(2).) The Act covers applicants in addition to current employees. (Section 102(3).)

Some of the terms contained in the PWFA should be familiar to employers. The “reasonable accommodation“ requirement and the term “undue hardship“ both appear in the Americans with Disabilities Act (“ADA”) passed decades ago. (Section 102(7).) Similarly, the PWFA requires employers to engage in an “interactive process” with the applicant or employee to discuss an appropriate accommodation.? Id.? And, consistent with many other civil rights statutes, the PWFA prohibits retaliation for exercising rights under the statute, or interfering with an individual’s right to exercise any right granted by the statute. (Section 104(f).)

Yet, the PWFA contains significant departures from current law.? At its core, it is more protective of workers who are affected by pregnancy, childbirth, or related medical conditions than any previous law.? The term “known limitation” is defined to include a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, whether or not such a condition meets the definition of disability under the Americans with Disabilities Act.? Such conditions include pre-pregnancy limitations such as infertility, and post-pregnancy limitations such as acute cardio-vascular problems that are a consequence of the pregnancy.? See Proposed Regulations,1636.3(f)(2)(ii) at p. 38.? The regulations proposed by the EEOC, published in the federal register on August 11, 2023 for public comment, are very comprehensive (275 pages) and contain some critical points of departure from current law.

Reasonable Accommodation Will Be A Much Broader Category of Workplace Modifications

With respect to reasonable accommodations, the regulations are much broader than those under the ADA.? The list of specific accommodations that are presumed to be “reasonable” has been expanded to include: frequent breaks, sitting/standing modifications, schedule changes, part-time work, paid and unpaid leave, telework, preferred parking, light duty, making existing facilities accessible, job restructuring (i.e., switching duties between employees), temporarily suspending one or more essential functions, acquiring or modifying equipment, uniforms, or devices and adjusting or modifying examinations or policies. See Proposed Regulations, 1636.3(i) at pp. 55-59 (emphasis added).

The accommodation which results in restructuring a job to eliminate one if its essential functions is quite a departure from the ADA where, for example, the accommodation is made to allow the covered employee to perform the essential functions of the position.? Yet, this provision comes from the language of the statute itself which states that an employee or applicant shall be considered qualified under the PWFA if “any inability to perform an essential function is for a temporary period, the essential function could be performed in the near future, and the inability to perform the essential function can be reasonably accommodated.” (Section 102(6).).

As another example, the Proposed Regulations provide that leave, including intermittent leave, may be a reasonable accommodation even if the covered entity does not offer it as an employee benefit. In that situation, if a production standard existed, it likely would need to be prorated to account for the time the employee was on leave. See Proposed Regulations, 1636.3(h) at pp. 50-51.

Reasonable Accommodation May Be Required For Several Recurring Time Periods

The regulations try to fill in the length of the accommodation obligation by defining some of terms. For example, a “temporary period” means the need to suspend one or more essential functions “lasting for a limited time, not permanent, and may extend beyond in the near future.” The definition of “in the near future” means generally 40 weeks from the start of the temporary suspension of an essential function. This definition is based on a full term pregnancy. See Proposed Regulations, 1636.3(f)(2)(ii) at p. 37. So, assuming the employee has obtained the required medical certification, an employer may have to eliminate an essential function of that employee’s position for the entire course of the pregnancy. And, the forty weeks would restart once the pregnancy is over and the worker returns to work after leave. See Proposed Regulations, 1636.3(f)(2)(ii) at p. 40.

Undue Hardship Will Be More Difficult to Establish

Finally, the Proposed Regulations substantially impact the definition of “undue hardship” by including a new term – “predictable assessments.”? See Proposed Regulations, 1636.3(j)(4) at p. 67.? These are deemed to be “simple modifications that will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by an employee due to pregnancy.” (Emphasis added.) These four specified modifications are allowing an employee: (1) to “carry water and drink, as needed, in the employee’s work area;” (2) “additional restroom breaks;” (3) “whose work requires standing to sit and whose work requires sitting to stand,” and (4) to take “breaks, as needed, to eat and drink.”? See Proposed Regulations, 1636.3(h) at p. 68.? Although the EEOC’s position is that the addition of the term “predictable assessments” does not alter the meaning of the terms “reasonable accommodation” or “undue hardship,” id., that remains to be seen.

Closing Remarks

The final regulations will be issued by December 29, 2023. In the meantime, the statute has been effective since June 27, 2023. If a situation arises under the PWFA, one thing is clear: relying solely on principles supporting the Americans with Disabilities Act likely will be insufficient to comply with the broader coverage of the new Act.?