Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
The Pregnant Workers Fairness Act took effect on June 27, 2023, and requires covered employers to provide reasonable accommodations to qualified employees or applicants for known limitations related to, affected by or arising out of pregnancy, childbirth or related medical conditions, unless the accommodation would impose an undue hardship.
Under the PWFA, “undue hardship” means significant difficulty or expense. The PWFA is directed at workplace accommodations, while other laws enforced by the Equal Employment Opportunity Commission separately prohibit discrimination based on pregnancy or related conditions.
On April 15, 2024, the EEOC issued its final rule and interpretive guidance to implement the PWFA. That became effective on June 18, 2024.
Overview of PWFA and final rule
The PWFA has two definitions of “qualified.” First, like the Americans with Disabilities Act, an employee or applicant is qualified under the PWFA if they can perform the essential functions of the position with or without a reasonable accommodation. Second, the PWFA also treats an individual as qualified even if they cannot perform one or more essential functions, so long as 1) the inability is temporary; 2) the individual can perform the essential functions in the near future; and 3) the inability can be reasonably accommodated. The final rule defines “temporary” as lasting for a limited time, not permanent, and may extend beyond “in the near future.”
The final rule also explains that, in pregnancy-related circumstances, it is presumed that an employee can perform the essential function(s) “in the near future” or within 40 weeks of the suspension of the essential function(s). In situations other than pregnancy, “in the near future” is analyzed on a case-by-case basis.
The final rule does not make substantive changes to the meaning of “pregnancy, childbirth, or related medical condition,” which remains broadly defined. As such, “pregnancy” and “childbirth” include current pregnancy, past pregnancy, potential or intended pregnancy (which includes infertility, fertility treatments and the use of contraception), labor, and childbirth (including vaginal and cesarean delivery).
“Related medical conditions” include conditions related to, affected by or arising out of pregnancy or childbirth. The final rule includes non-exhaustive examples such as termination of pregnancy, including by miscarriage, stillbirth or abortion; lactation and conditions related to lactation; menstruation; postpartum depression, anxiety, or psychosis; vaginal bleeding; preeclampsia; pelvic prolapse; preterm labor; ectopic pregnancy; gestational diabetes; cesarean or perineal wound infections; maternal cardiometabolic disease; endometriosis; changes in hormone levels; and other conditions.
The PWFA limits employer documentation requests to the minimum documentation necessary to confirm 1) the existence of a physical or mental condition related to, affected by, or arising out of pregnancy, child birth, or related medical conditions; and 2) the adjustment or change at work needed because of a limitation. The final rule also identifies situations where it is generally not reasonable to seek supporting documentation.
Legal challenges
After the final rule was issued, several states filed lawsuits claiming that the EEOC unlawfully expanded the PWFA through its rulemaking.
In litigation involving the state of Texas, a federal district court in the Northern District of Texas blocked the enforcement of the PWFA against Texas and its agencies holding that Congress passed the law without meeting the quorum requirements in violation of the U.S. Constitution. On appeal, a three-judge panel reversed and held that the EEOC could enforce the PWFA against Texas. On Jan. 14, the 5th Circuit vacated that panel decision and ordered rehearing en banc. The rehearing is expected to occur this year.
In addition, in response to the final rule, 17 states (including Indiana) filed a lawsuit in the Eastern District of Arkansas challenging the final rule and specifically that requiring accommodations for individuals seeking elective abortions conflicts with those states’ policies. After a dismissal based on lack of standing and the 8th Circuit’s reversal of that decision, this litigation is back with the district court to be decided on the merits.
Not only could pending litigation impact the PWFA going forward, but the EEOC may also change its course. EEOC Chair Andrea Lucas has expressed her opposition to the portions of the final rule and what it includes as “pregnancy, childbirth, or related medical conditions.” As a result, the EEOC may be positioned to rescind and/or replace some portion of the existing final rule in an effort to limit its reach to pregnancy and childbirth conditions, as opposed to conditions related to infertility, menstruation and menopause.
Practical tips for employers
Despite pending litigation and future potential changes by the EEOC itself, the PWFA remains in effect and covered employers must comply with it by reasonably accommodating known limitations related to, arising out of, and affected by pregnancy, childbirth, and related medical conditions. Employers may wish to ensure compliance with the PWFA through the following practical tips.
• Stay informed of legal developments surrounding the PWFA’s final rule, as well as state and local laws regarding pregnancy, childbirth and related medical conditions. The PWFA does not invalidate or replace federal, state or local laws that are more protective of workers. To the extent such laws provide greater protections, employers must comply with the PWFA and analogous federal, state and local law.
• Review materials and guidance published by the EEOC to better understand the requirements of the PWFA.
• Review and update reasonable accommodation employee handbook policies, procedures and processes, as needed, to ensure compliance with federal, state and local laws regarding pregnancy, childbirth and related medical conditions.
• Review and update reasonable accommodation paperwork specific to the PWFA. Information requested by Family and Medical Leave Act and ADA paperwork may not comply with the PWFA’s minimum documentation standard.
• Train leaders, including managers, supervisors and the human resources department, on the PWFA to ensure compliance and to equip them with strategies for recognizing PWFA requests and identifying reasonable accommodations.
• Carefully review accommodation requests under the PWFA and consult legal counsel, as needed.•
__________
Macchia and Van Pelt are attorneys in Taft’s Employment and Labor Relations group.
Please enable JavaScript to view this content.