The Five Rules of the PWFA.
The Pregnant Workers Fairness Act (PWFA) applies to employers with at least 15 employees and became effective on June 27, 2023. It’s less than 10 pages long, but don’t be fooled. There is a lot packed into the PWFA, both in what it says and, what it does not say.
The Equal Employment Opportunity Commission (EEOC) must issue final regulations to implement the PWFA by Dec. 29, 2023.
The heart of the PWFA is found in section 103, which provides that it will be an unlawful employment practice for employers to do five things:
- Fail to make a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless doing so would create an undue hardship;
- Require an employee to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;
- Deny employment opportunities based on the need to make reasonable accommodations;
- Require an employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the employee; and
- Take an adverse action against an employee because the employee requested or is using a reasonable accommodation.
The PWFA adopts the definitions of reasonable accommodation, undue hardship and the interactive process found in the Americans with Disabilities Act (ADA). And, like the ADA, the PWFA prohibits discrimination, retaliation, and interference with employees attempting to exercise their PWFA rights.
Sounds fairly simple and familiar, right? Let’s unpack the PWFA further.
It’s not just about accommodating pregnancy and childbirth.
Most employers understand they will have to accommodate employees who are pregnant. However, employers will also have to accommodate employees due to childbirth. This may include providing time off work to recover from childbirth, work restrictions arising out of Cesarean sections and complicated deliveries, and time to express breast milk (which is also covered by the Providing Urgent Maternal Protections for Nursing Mothers Act, a.k.a. PUMP Act).
The PWFA also covers related medical conditions, which might require providing accommodations for limitations arising out of fertility treatments (for men and women), miscarriage, and early termination of a pregnancy.
Limitations due to anxiety, depression, and other mental health challenges related to pregnancy, childbirth and related medical conditions count too.
The statute defines known limitations to include physical and mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions communicated to the employer, whether or not such condition meets the definition of disability under the ADA.
Therefore, employers should be prepared to accommodate limitations arising out of stress, anxiety, and depression related to pregnancy, childbirth, and related medical conditions.
Who is a qualified employee entitled to reasonable accommodations?
This definition is causing employers most of their heartburn. The law provides that a qualified employee is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if:
- any inability to perform an essential function is for a temporary period;
- the essential function could be performed in the near future; and
- the inability to perform the essential function can be reasonably accommodated.
The limitation must be temporary.
The definition of a qualified employee provides that, if an employee is not able to perform the essential functions of the job even with an accommodation, the employee still may be qualified if the inability to perform the essential function is temporary. Unfortunately, the statute does not define or give any clues regarding what temporary means. It likely will mean more than the 12 weeks provided for serious health conditions under the Family and Medical Leave Act, a.k.a. FMLA. It may be closer to a year to cover the full term of a pregnancy, plus six-to-eight weeks of recovery following childbirth.
No ability to perform essential job functions, no problem.
One of the bedrock principles under the ADA is that employers do not have to eliminate essential job functions. Under the PWFA, the duty to reasonably accommodate employees arguably is broader and will require employers to potentially eliminate an essential job function if the employee’s inability to perform the function is temporary.
What does this mean in practice?
For years, there has been a push for light duty work for pregnant employees, rather than requiring them to take leave. Under the EEOC’s prior guidance and the U.S. Supreme Court’s decision, employers were only required to provide light duty for pregnant employees, if they did so for others who were similar in their ability or inability to work.
Under the PWFA, light duty work created by eliminating some of the essential functions of the job, like lifting, standing, pushing, or pulling, may be required when these limitations are “temporary.” Employers may need to establish that eliminating the job function would impose an undue hardship in order to decline the request (or find an alternative accommodation through the interactive process that would allow the employee to continue working).
The interactive process … on steroids.
The need to engage in the interactive process is much the same as under the ADA. However, the drafters of the PWFA were clear that employers must engage in the interactive process. The PWFA goes as far as to declare it an unlawful employment practice to require an employee to accept an accommodation that was not the result of the interactive process.
As a practical matter, if the employee asks for a particular accommodation and the employer grants the request without further discussion, then that arguably would not be considered requiring the employee to accept an accommodation.
Leave is the accommodation of last resort.
Under the ADA, when an employee cannot perform the essential functions of their job, the EEOC and some courts take the position that transfer to a vacant position is the accommodation of last resort.
Under the PWFA, unless the employee is specifically requesting it, placing an employee on leave of absence should not be considered until all other forms of reasonable accommodation are considered and determined to be unworkable. This will necessarily entail considering temporary reassignment to a vacant position that meets the employee’s skillset and is within the employee’s limitations.
This makes sense. A temporary reassignment allows an employee to continue to be paid, whereas most leaves are unpaid.
Train your managers and review your policies.
Managers and human resources professionals need to be trained on the requirements of the PWFA and the employer’s policies and processes that will be followed under the PWFA. The employer acts through its managers; a manager who does not recognize a request as potentially covered by the PWFA and tells the employee their request is not permitted may have created the foundation for a claim that the employer interfered with or violated an employee’s rights under the PWFA.
Likewise, a human resources professional who treats a request for accommodation under the PWFA exactly like a request for accommodation under the ADA may also create a problem.
Although employers are not required to have a policy for every situation, to the extent an employer has a reasonable accommodation policy, the language of the policy should be reviewed and potentially updated. In addition, if an employer has a point- or occurrence-based attendance policy that includes exceptions for various types of absences, employers should consider updating the policy to make clear that employees won’t be penalized for taking time off work as a reasonable accommodation under the PWFA.
Modify your ADA reasonable accommodation forms for PWFA requests.
Setting aside leave compliance in California, many ADA accommodation request forms and medical questionnaires ask the employee or their treating healthcare provider to identify the disability or explain the employee’s physical or mental impairment that substantially limits a major life activity or bodily function.
Under the PWFA, the employee does not have to have a disability to be entitled to a reasonable accommodation. Under the PWFA, employee request forms may need to be tailored to ask about an employee’s limitations related to pregnancy, childbirth, and related medical conditions, an explanation of what type of accommodation is necessary to perform specific job functions and whether there are alternatives, and how long any accommodation will be necessary.
As for medical questionnaires, it is important to consider whether the employee works in a jurisdiction that has adopted a state or local pregnant workers fairness act statute that limits an employer’s ability to request medical information to support an accommodation request due to pregnancy and childbirth.
Employers will also need to consider the pros and cons of requesting medical support for more common types of accommodation, such as more frequent or longer rest breaks, more frequent restroom, food and water breaks (or access to food and water near the workstation), stools, chairs or other opportunities for sitting while working, larger uniforms, and such modified equipment as larger size seat belts or safety vests.
Medical support will not be necessary for lactation breaks but making sure the employee and manager understand the employee’s anticipated timing of breaks and how they will coincide, if at all, with regularly scheduled paid breaks will be helpful for everyone involved.
Also keep in mind that additional rest, food, water, and bathroom breaks must be paid appropriately under the Fair Labor Standards Act and any state and local wage and hour laws. In addition, employers must properly compensate employees for certain lactation breaks. According to U.S. Department of Labor Wage and Hour Division Field Assistance Bulletin No. 2023-02, employers need to avoid a host of other wage and hour missteps, such as asking employees to delay their breaks, asking employees to work extra to make up for lactation breaks, and including time spent on lactation breaks against production quotas. For more details, see the Jackson Lewis blog explaining the guidance.
PWFA Requests for time off can potentially be covered by state and local PSLs and FMLA.
Requests for accommodation in the form of time off to attend prenatal medical appointments, testing, and procedures will be common and asking an employee for advance notice of scheduled appointments makes sense. The same is true for requests for accommodation in the form of a leave of absence related to pregnancy or childbirth.
Keep in mind, however, that requests for time off as a PWFA reasonable accommodation may also be covered by an applicable state or local paid sick leave (PSL) law or the FMLA. If the time off is being treated as state or local PSL, be sure not to ask for medical support, unless the PSL law allows it (many prohibit asking for medical support, except the employee has a certain number of consecutive days of absences from work).
If the FMLA applies and the employee is eligible and has leave available, be sure to provide the employee the required FMLA forms, including but not limited to the FMLA certificate of healthcare provider form, instead of a PWFA medical questionnaire.
Watch for EEOC guidance and regulations.
The PWFA is short and to the point. Although a lot of information is packed into the statute, the statute leaves many questions unanswered. Make sure you have identified several trusted sources of timely information so that, when the EEOC issues guidance and proposed regulations, you can assess what policies and practices need to be modified to reasonably align with the EEOC’s interpretation of the new law.
Authors: Katharine C. Weber, Principal Patricia Anderson Pryor, Office Managing Principal (Jackson Lewis)
