Pregnant Workers Fairness Act

May 13, 2024

By Barrie Charapp Beaty
Charapp & Weiss, LLP
bbeaty@cwattorneys.com

We have written a few articles on the Pregnant Workers Fairness Act (PWFA) in the last year.  As you may recall, the PWFA went into effect on June 27, 2023, and covers employers with 15 or more employees.  For implementation of the PWFA, the Equal Employment Opportunity Commission issued regulations to interpret the PWFA on April 15, 2024, and they go into effect on June 18, 2024.

The PWFA requires reasonable accommodations for a worker’s known limitations related to, affected by, or arising out of pregnancy, childbirth or related medical conditions unless the accommodation will cause an undue hardship on your business.  Also, employers cannot discriminate against employees based on known limitations related to, affected by, or arising out of pregnancy, childbirth or related medical conditions related to, affected by, or arising out of pregnancy, childbirth or related medical conditions.

What is a known limitation?

Under the PWFA, a known limitation is one communicated to the employer and a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, which may even be modest, minor or episodic, and include when an employee seek health care related to pregnancy, childbirth, or related medical conditions.  The employee’s condition need not meet a disability under ADA laws.

Is the employee who has the limitation as a result of the “pregnancy, childbirth or related medical conditions” the only person who is required to have reasonable accommodations? 

Yes. The regulations make clear that the PWFA requirements do not extend to family members, spouses, or partners of an employee who has limitations as a result of a “pregnancy, childbirth or related medical conditions.”  Therefore, it you have a husband and wife working for you at your dealership and the wife goes on bed rest, which means rest and reduced activity under the PWFA, the wife should be afforded reasonable accommodations such as working from home but no such reasonable accommodation need to be given to the husband.

Are the reasonable accommodations only for those currently pregnant or just given childbirth? 

No. The EEOC specifically chose not to limit the definition of “pregnancy” and “childbirth” to include a temporal proximity to current or recent pregnancies or childbirth.  “Pregnancy” and “childbirth” definitions include current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including vaginal and cesarean delivery).  For example, you would have to make reasonable accommodations for those employees who are suffering from postpartum depression from past pregnancies should the employee make the limitation known to you.

Can “related medical conditions” be any condition? 

No. There needs to be a connection between the related medical condition and the pregnancy or childbirth.  However, the “pregnancy, childbirth or related medical conditions” need not be the original or substantial reason for the physical or mental condition causing the limitation.  The PWFA only requires that there be a connection to the medical condition and “pregnancy, childbirth or related medical conditions.”  The regulations lists numerous related medical conditions, which is not exhaustive, including  termination of pregnancy, (i.e., miscarriage, stillbirth, or abortion); ectopic pregnancy; preterm labor; cesarean or perineal wound infection; gestational diabetes; preeclampsia; anemia; endometriosis; sciatica; carpal tunnel syndrome; chronic migraines; dehydration; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstruation; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections.

Does an abortion require reasonable accommodations? 

Yes. An abortion is included in the definition of “pregnancy, childbirth or related medical conditions.” The regulations make it clear that the PWFA does not require any employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment, including an abortion. Additionally, a reasonable accommodation is not requiring employers to pay any travel-related expenses for an employee to obtain an abortion.  The regulations suggest that a reasonable accommodation sought under the PWFA regarding an abortion would be time off to attend a medical appointment or for recovery.

What does a reasonable accommodation look like?

Reasonable accommodations would be based on the situation and circumstances communicated to you by the employee.  For example, if the employee has morning sickness in the evenings, the employee’s hours should be shifted to the morning to accommodate the employee’s condition.  The regulations highlight some reasonable accommodations, but the list is not exhaustive:

• breaks for use of the restroom, drinking, eating, and/or resting;
• equipment to assist with lifting or carrying items;
• permitting the use of paid leave (whether accrued, as part of a short-term disability program, or any other employer benefit) or providing unpaid leave to be used for various conditions including recovery from childbirth, miscarriage, stillbirth, or medical conditions related to pregnancy or childbirth, or to attend health care appointments or receive health care treatment;
• temporarily suspending one or more essential functions of the employee’s position;
• breaks and a place (other than the bathroom) for pumping or breastfeeding; and
• providing a reserved parking space close to the dealership for the employee to park

What would be an undue hardship on the company?

An undue hardship to provide the reasonable accommodation is significant difficulty or expense incurred by the company viewed in light of the following factors:

• nature and net cost of the accommodation needed under the PWFA;
• the financial resources of the facility and the company, which takes into account overall size of the company and number of employees;
• the company’s operations; and
• the impact of the accommodation, including the company’s ability to conduct business.

For best practices, your company should have processes and procedures for a PWFA accommodation request.  The employees should know who the known limitation should be communicated to so that the accommodations are implemented upon the known limitation and uniformly. There should be no discrimination against the employee requesting the reasonable accommodation or discrimination amongst the accommodations provided to the employees.  If you have specific questions regarding the PWFA, you should seek legal guidance from your attorney.