The recently enacted Pregnant Workers Fairness Act (PWFA) was effective June 27, 2023. This new law makes discrimination against pregnant workers unlawful and provides additional protections for pregnant workers.

Coverage and Accommodations

Employers covered by the Act are now required to provide reasonable for an employee’s known limitations related to pregnancy, childbirth and related medical conditions. Congress also directed the Equal Employment Opportunity Commission (EEOC) to issue regulations to implement and enforce the Act, and the proposed rules have now been issued for public comment.

Insight into Interpretation

The rules provide some insight into how the EEOC will interpret the Act, especially with respect to (i) what conditions related to pregnancy and childbirth might fall within the scope of the Act, and (ii) what accommodations might be considered reasonable.

The EEOC paints with a broad brush and includes, within the sphere of pregnancy, issues occurring during a:

“Current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.”

Such “other conditions” include postpartum anxiety and depression.

Under the proposed rule, the PWFA will also cover conditions that are generally unrelated to pregnancy or childbirth but may have been worsened by pregnancy or childbirth, such as anxiety or high blood pressure. It appears that the EEOC considers any functioning, misfunctioning or non-functioning component of the reproductive system that limits the ability to work potentially subject to accommodation.

Definition of “Pregnant Worker” and Accommodations

Interestingly, the EEOC rule does not define the term “pregnant worker” but uses the definition of “employee” under Title VII of the Civil Rights Act of 1964. That begs the question as to whether male workers who experience work limitations due to infertility, erectile dysfunction or other reproductive matters will also be covered. These individuals may possibly be covered, given the EEOC’s statement in its summary to the proposed rule:

“[w]hoever satisfies the definition of an ‘employer’ or an ‘employee’ under any of these statutes [e.g. Title VII] is an employer or employee for purposes of the PWFA.”

The term “limitation” includes physical and mental conditions “related to, affected by, or arising out pregnancy, childbirth, or a related medical condition.” Severity is not a factor, as a limitation may be “a modest, minor, and/or episodic impediment or problem” and includes necessary healthcare treatment in and of itself. Thus, although in some cases the Family Medical Leave Act and the PWFA may overlap, the term “limitation” in the PWFA has a much wider scope than the “serious health condition” requirement under the FMLA. As a result, a pregnant worker may still be entitled to an accommodation with paid or unpaid leave under the PWFA, even though no such remedy would have been available under the FMLA and, as is noted below, may provide a much longer period of leave than that which is available under the FMLA.

Comparison to ADA and Reasonable Accommodations

The PWFA borrows from the Americans with Disabilities Act (ADA) but does not mirror it. Unlike the ADA, which allows an employer to request medical support for disabilities that may not be apparent, the EEOC foresees that under the PWFA, medical support will seldom be required as the existence of the condition or limitation:

“Will be a straightforward determination that can be accomplished through a conversation between the employer and the employee as part of the interactive process and without the need for the employee to obtain documentation or verification.”

Qualification and Accommodation

In determining whether an employee is “qualified,” although the PWFA borrows from the ADA requiring that the employee be able to perform the essential functions of the position with or without reasonable accommodation, under the PWFA an employee may still be qualified even if the employee cannot perform the essential functions of the position at all, so long as such inability is temporary and the essential functions can be reasonably accommodated. The EEOC defines ‘temporary’ as a limited duration, not permanent, and which may extend into the near future. The latter is further defined as up to forty (40) weeks, subject to the determination of whether it constitutes an undue hardship on the employer. The forty week period is substantially longer than the 12 weeks of leave that is available under the FMLA.

Reasonable Accommodations and Undue Hardship

Wielding the same broad brush, the EEOC suggests the following as reasonable accommodations:

• Telework
• Schedule changes
• Part-time work
• Light duty
• Extra time to visit the bathroom
• Breaks for hydration and nutrition
• Drinking water on the job
• Sitting or standing as necessary
• Acquiring or modifying equipment or uniforms
• Adjusting examinations
• Job restructuring
• Modifying the work environment
• Making facilities more accessible

Undue Hardship and Religious Objections

As with the ADA, the accommodations required must meet the standard of not imposing an undue hardship. As we learned from the U.S. Supreme Court in the recent Groff case, that standard can be a sliding scale. The EEOC does not suggest any bright line rule here.

Also, the proposed rules provide that, when requesting an accommodation, an employee need not do so in writing; it is sufficient to mention it in conversation or other mode of communication.

In the proposed rules, the EEOC  anticipates objections based on grounds of religious beliefs and attempts to assure the public that the PWFA was not intended to abridge anyone’s constitutional rights, noting that the Act does not require employer health plans to pay for or cover any specific item, procedure or treatment. Whether the employer might actually be required to pay for such accommodations is not addressed. Under the ADA which has a similar legislative framework, employers are generally not required to pay for treatments or procedures, but whether the employer must pay for a specific accommodation is a factor in the undue hardship analysis. Under the ADA, employers may also be on the hook for tangible accommodations such as equipment that would enable a disabled person to perform the essential functions of the job. Such analysis can easily bleed into the PWFA.

Comment Period and Implementation

The public has until October 10, 2023, to forward comments to the EEOC on the proposed rule. It is not too early to implement your PWFA policy, the Act is now in effect and provides the general framework.