Labor & Employment Blog

The EEOC recently issued its final regulation to implement the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023, and the final regulation goes into effect on June 18, 2024. Chamberlain’s previous alert on this topic can be found here.

The PWFA requires businesses that employ fifteen (15) or more employees to make reasonable accommodations for an employee’s or job applicant’s known limitations related to “pregnancy, childbirth, or related medical conditions” unless doing so would impose an “undue hardship” on the employer. “Undue hardship” means significant difficulty or expense. The employer has the burden to prove undue hardship.

The final regulation interprets “pregnancy, childbirth, and related medical conditions” expansively to include current pregnancy, past pregnancy, potential pregnancy, use of contraception, infertility and fertility treatments, miscarriage, stillbirth, having or deciding not to have an abortion, lactation (including pumping and breastfeeding), menstruation, endometriosis, sciatica, carpal tunnel syndrome, dehydration, high blood pressure, and anxiety, depression, or psychosis (during the pregnancy or postpartum), among other conditions. “Related medical conditions” also include pre-existing conditions that are exacerbated by pregnancy or childbirth.  

The PWFA differs from the Americans with Disabilities Act (ADA) in significant respects. The condition may be “minor or modest” and does not need to rise to the level of a “disability” under the ADA in order to be covered by the PWFA. Unlike the ADA, an employee is protected under the PWFA even if the employee is unable to perform one or more essential functions of the job if the inability is “temporary,” the employee could perform the essential function(s) “in the near future,” and the inability to perform can be reasonably accommodated.

Employers must engage in an interactive process with the employee to arrive at a reasonable accommodation. The EEOC presumes that the following accommodations will not impose an “undue hardship” on the employer in most cases:

• Allowing the employee to keep or carry water and drink, as needed;
• Allowing the employee to take breaks, as needed, to eat and drink;
• Allowing the employee to take additional breaks, as needed, to use the restroom;
• Allowing an employee whose work requires standing to sit, and vice versa, as needed.

Other reasonable accommodations may include, but are not limited to: (i) time off for healthcare appointments; (ii) closer parking; (iii) changing a dress code or uniform; (iv) providing safety equipment that fits; (v) light duty or exemption from strenuous activities; (vi) help with lifting or other manual work; (vii) teleworking; (viii) changing a work schedule to have a later start time, shorter hours, or part-time work; (ix) temporary reassignment; (x) temporary suspension of one or more essential functions of the job; and (xi) time off to recover from childbirth, miscarriage, or other medical conditions related to pregnancy or childbirth. This list is not exhaustive, and the interactive process is intended to help identify adjustments needed to accommodate the employee’s limitations.

The following practices are prohibited under the PWFA: (1) failing to provide a reasonable accommodation for an employee’s or applicant’s known limitations, unless the accommodation would cause an undue hardship; (2) requiring the employee or applicant to accept an accommodation other than a reasonable accommodation arrived at through the interactive process; (3) denying employment or other employment opportunities to a qualified employee or applicant based on the individual’s need for a reasonable accommodation; (4) requiring the employee to take leave when another reasonable accommodation would allow the employee to continue working; and (5) retaliating against employees or applicants for requesting or utilizing a reasonable accommodation, opposing or reporting discrimination under the PWFA, or participating in a PWFA proceeding, including an investigation.

To pursue a lawsuit based on an alleged violation of the PWFA, an employee, applicant, or former employee must first file a charge with the EEOC. An employer who violates the PWFA may be liable for significant economic damages, including front pay, back pay, past and future expenses, and mental anguish damages, as well as punitive damages and attorneys’ fees.

The final regulation of the PWFA can be found here. Employers should act now to ensure their accommodation policies and practices comply with the PWFA, including the final regulation, and educate human resource personnel and supervisors on the PWFA’s requirements.

Chamberlain Hrdlicka’s Labor & Employment Group is available to answer any questions and help your business comply with the PWFA. Feel free to forward this Labor & Employment Alert to anyone who might be interested. If you have questions, please send an e-mail to employmentlaw@chamberlainlaw.com