On August 11, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued proposed regulations to implement the federal Pregnant Workers Fairness Act (PWFA). The proposed regulations will remain open for public comment through October 10, 2023.
What is the PWFA?
The PWFA became law on June 27, 2023. It requires covered employers (those with fifteen or more employees) to “provide reasonable accommodations to qualified workers affected by pregnancy, childbirth, or related medical conditions, so they can remain healthy and in their jobs.” The PWFA’s coverage is intentionally broad, allowing employees with “uncomplicated pregnancies to seek accommodations, recognizing that even uncomplicated pregnancies may create limitations for workers.” The statute covers pregnancy, childbirth, and “related medical conditions,” which includes current, past, and potential pregnancy, lactation, use of birth control, menstruation, infertility and infertility treatments, and endometriosis.
How Does the PWFA Differ from Title VII, the ADA, and FMLA?
The PWFA was passed by Congress to address gaps in existing coverage under Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA), for workers affected by pregnancy, childbirth, or related medical conditions. Under Title VII, courts have often limited the claims of affected pregnant employees to situations where the worker can circumstantially identify another similarly situated individual who received a comparable workplace modification, or when there is direct evidence of discrimination, e.g., biased comments by a supervisor. Under the ADA, a worker may have the right to reasonable accommodation, but only if their physical or mental condition rises to the seriousness of an ADA-covered disability. Finally, although the FMLA, provides 12-weeks of job-protected unpaid leave for a serious health condition, including the birth of a child and child bonding, it is available only to those who work for an employer with 50 or more employees with a 75-mile radius of the worksite.
Who is a “Qualified Employee” with a “Known Limitation” Under the PWFA?
The PWFA requires employers to provide reasonable accommodations, absent undue hardship, to a “qualified employee” with a “known limitation” related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The term “limitation” includes both physical or mental conditions, even those that may be modest, minor, or an episodic impediment or problem. To be covered by the PWFA, the employee’s physical or mental condition does not need to rise to the seriousness of a ‘disability’ under the ADA.”
Consistent with the ADA, a ”qualified employee” means a worker who “with or without reasonable accommodation can perform the essential functions of the position. However, the PWFA also includes an individual unable to perform an essential function temporarily, if the employee will be able to perform the essential function “in the near future,” which is defined under the proposed regulations as “generally [up to] forty weeks from the start of the temporary suspension of an essential function.”
What Accommodations are Employers Required to Make Under the PWFA?
The proposed regulation includes a “non-exhaustive list of examples of possible accommodations” under the PWFA, including:
- Job restructuring, including a part-time or modified work schedule
- Assignment of light duty
- More frequent breaks
- Changes in performance or production standards
- Telework
- Permitting the use of paid leave or providing unpaid leave
- Temporary suspension of one or more essential functions of the job
How is Undue Hardship Defined Under the PWFA?
“Undue hardship,” under the PWFA regulations is consistent with the ADA, which is “significant difficulty or expense” incurred by the employer, considering a number of factors, including the length of time the employee will be unable to perform the essential functions of the job. Simple, common accommodations for pregnancy will in virtually all situations be viewed as reasonable and not imposing an undue hardship when requested by an employee, including to carry water and drink, as needed, in the employee’s work area, take additional restroom breaks, and take breaks, as needed, to eat and drink.
How does the PWFA Fit with State and Local Laws?
The PWFA is similar to the existing laws in thirty states. For Virginia employers, the state law comparable to the PWFA is the Virginia Values Act, which provides that no employer shall “refuse to make reasonable accommodation to the known limitations of a person related to pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer.”
Bean, Kinney & Korman’s employment law practice group works proactively with employers of all sizes, in Virginia, Maryland, and the District of Columbia, to craft a full range of employment policies and documents to meet the compliance challenges of the PWFA, and all applicable federal, state, and local laws. If you have questions about the PWFA, the EEOC’s proposed regulations, or need assistance with your company’s employee policies or forms, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com, or your current Bean, Kinney & Korman attorney.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.