Pregnancy Fairness: Expansion of the PWFA

The rights of pregnant employees nationwide were recently expanded under the Pregnant Workers Fairness Act (“PWFA” and “Act”), enacted in June of 2023. The PWFA provides protections for pregnant, prepartum and postpartum employees who work at private employers with 15 or more employees; federal agencies; unions; and employment agencies. Under the PWFA employers must, absent undue hardship, provide reasonable accommodation for known limitations related to pregnancy. This article addresses employees’ rights under the PWFA, employers’ obligations in complying with it, continuing legal uncertainty surrounding this new piece of federal legislation, and other laws related to the PWFA.

Prior to the PWFA, federal rights for pregnant employees who needed pregnancy- related accommodation were limited. Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act, prohibits employers from making employment decisions such as hiring or firing based on the employee’s pregnancy. Under the Americans with Disabilities Act of 1990 (ADA) employers must provide reasonable accommodations for a qualified individual with a disability. For a pregnant employee to be entitled to receive accommodation under the ADA, the need for a workplace accommodation cannot be attributable to the pregnancy generally. Rather, the employee must allege a specific pregnancy- related disability and demonstrate that the reasonable accommodation requested would allow the employee to perform the essential functions of her job.

Given the minimal protections historically provided to pregnant employees, they faced broad uncertainty as to entitlement to reasonable accommodations. According to a study conducted by the Bipartisan Policy Organization in 2022, 23 percent of pregnant women considered leaving their jobs due to a lack of reasonable accommodations or fear of discrimination from their employer because of their pregnancy.1

Employee Rights

The newly enacted PWFA provides employees with the right to a reasonable accommodation related to pregnancy, childbirth and related medical conditions if their employer falls under the Act.2 Covered employees are those working for federal agencies, unions, private employers with 15 or more employees, and employment agencies. The PWFA is enforced by the EEOC and will require an employee to exhaust their administrative remedies before filing a lawsuit.

Under the PWFA a pregnant employee has the right to request reasonable accommodation from their employer. This request must identify their limitations related to pregnancy, childbirth or other related conditions, and must indicate a need for an adjustment or change at work. The request does not have to be in writing, and specific words or phrases are not necessary.

Whether an employee is entitled to the accommodation is to be considered through the nature and source of the limitation and not the severity of the condition. This means that the condition, either physical or mental, that leads to the request can be modest, or minor. As a result, the medical conditions covered under the PWFA are broader than those that give rise to a disability as defined under the ADA.

Importantly, the employer must involve the requesting employee in the determination of reasonable accommodation. This is referred to as an interactive process, which is a method from the ADA that helps the employer and employee identify reasonable accommodations through a good faith discussion between the parties. An employer cannot require an employee to accept an accommodation without this discussion between the employee and the employer. Furthermore, under the PWFA an employer may not force an employee to go on leave, either paid or unpaid, accept a reduced work schedule, or stop traveling for work as a proposed accommodation.

The PWFA provides stringent protections to employees preventing adverse actions taken by their employer for the employee using the rights afforded to them under the Act. Specifically, this includes that the PWFA prohibits threats, coercion, interference, intimidation or harassment from an employer to an employee exercising their rights under the Act.

Employer Obligations

While the breadth of employer’s obligations will be better understood once the final EEOC regulations are adopted, the core requirements of the Act relative to reasonable accommodations and retaliatory protections are known.3 Employers are obligated to provide reasonable accommodations for pregnancy-related conditions absent undue hardship.

The proposed regulations provide insight into examples of reasonable accommodation to be provided. These include ability to telework, parking accommodations, job restructuring, part-time work, and temporarily suspending one or more essential functions. In addition, the regulations provide a series of recommendations that have been deemed de facto reasonable. This includes additional restroom breaks, breaks to eat and drink, and the ability to alternate between sitting and standing. According to the EEOC, in virtually all cases the de facto accommodations do not impose undue hardship and thus should be granted.

In addition, the proposed regulations provide limitations surrounding the employer’s ability to request supporting documentation to substantiate the request for reasonable accommodations. An employer may only request supporting documentation when it is reasonable to require documentation of the circumstances. The proposed regulation outlines circumstances in which it would be unreasonable to do so. In those situations, an employer must rely on the employers’ attestation as to their current situation and needs. These situations include when the known limitation and need for accommodation are obvious.

The PWFA also provides broad protections against retaliation. The PWFA states that retaliation includes adverse actions for an employee attempting to enforce their rights under the PWFA, and also prohibits retaliation against an individual for reporting or opposing unlawful discrimination under the PWFA. It also would be retaliation under the Act to request supporting medical documentation when it is not reasonable under the circumstances. And an employer will be deemed to be acting in a retaliatory manner if the employer, after receiving sufficient medical documentation, continues to request additional documentation. Those covered under the PWFA are protected from retaliation as well as any individual who stands up against discrimination under the PWFA.

Continuing Legal Uncertainty

There has yet to be any litigation under the PWFA. Given the competing interest between employers and employees, it is reasonable to expect that early litigation under the PWFA will surround three key issues: (1) whether an employee’s condition relates to pregnancy, (2) whether an employee’s request for accommodation creates undue hardship for the employer, and (3) the definition of “in the near future.”

Related Medical Conditions

The PWFA does not define the term “pregnancy, childbirth, or related medical conditions.” The proposed regulations suggest that a broad reading of the term is intended, as the regulations provide broad examples of related medical conditions, including menstruation, infertility and fertility treatment, and termination of pregnancy. Employers will likely push back in the early years of litigation as to an overbroad reading of the term. Specifically, employers may challenge related medical conditions such as menstruation as being outside the scope of the PWFA. Conversely, employees may seek to apply the term “related to pregnancy” broadly to justify requests for accommodation for conditions beyond the strict medical definition or traditional understanding of the term. Ultimately, the courts will be tasked with defining the breadth of covered “related to pregnancy.”

Undue Hardship

The PWFA defines undue hardship as a significant difficulty or expense for the operation of the employer. The EEOC Proposed Regulations lay out factors to use when considering whether an undue hardship exists. Notwithstanding the forthcoming guidance to be provided by the regulations, the authors reasonably anticipate litigation surrounding whether a temporary suspension of an essential function causes an undue hardship to the employer. Employers may contend that undue hardship exists because of additional expense associated with temporary employee reassignment and/or hiring associated with a request for accommodation. Conversely, employees are likely to respond by contending that there is no undue burden where the accommodation is something that will be resolved “in the near future.”

“In the Near Future”

A covered employee under the PWFA may be able to perform the essential functions of her job with or without a reasonable accommodation. She also may be covered under the PWFA if: (1) any inability to perform an essential functions is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonable accommodated. In the proposed regulations, the EEOC defines “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” The EEOC defines “in the near future” to mean 40 weeks. Covered employees under PWFA may not only include actively pregnant employees; it likely includes pre- and post-partum employees. Considering foreseeable pushback on this definition, it may be up to the courts to decide what time frame is covered under the PWFA.

Laws Related to the PWFA

When evaluating a discrimination claim related to pregnant employees in Arizona, it is important also to evaluate the claim under Title VII and the ADA, the PUMP Act, and Arizona Sick Leave Laws, as the statutes are not mutually exclusive, and multiple claims may arise from the same set of facts.

With respect to the ADA, it is necessary to consider whether there is a pregnancy-related disability covered under the ADA or whether non-pregnant employees are receiving accommodation. If there is a pregnancy- related disability, in which a pregnant employee is being denied accommodation when a non-pregnant employee is provided accommodation, a claim under the ADA should be considered.

The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act is an amendment to the Fair Labors Standards Act that requires employers to provide reasonable break time for an employee to express breast milk for their nursing child for one year after childbirth, for each time the employee needs to express milk. Employees are entitled to a place to pump at work, other than a bathroom, which is shielded from view and free from intrusion from coworkers and the public. Under this law, an employee does not need to file a complaint with the Department of Labor before filing a lawsuit, thus the claim may be available to an employee who also would have a claim under the PWFA, but who would receive a remedy more quickly by categorizing the claim as under the PUMP Act.

The Arizona Paid Sick Leave in the Fair Wages and Healthy Families Act requires Arizona employers to provide a minimum amount of paid sick leave for their employees. Employees are allowed to take paid sick time for many different reasons, including for preventative medical care and illness. An employer is also prohibited from retaliating against an employee for utilizing their earned paid sick time. Thus, if an employee is retaliated against for using their sick leave, it is advisable to consider whether a violation occurred under the Arizona Paid Sick Leave, as well.

Conclusion

According to a study conducted by the American Congress of Obstetricians and Gynecologists in 2015, 56 percent of women were working full-time during their pregnancy.4 Prior to the PWFA, employees were left with little recourse to request accommodation for pregnancy-related conditions. While the full impact of the PWFA is yet to be determined, the Act unquestionably expands an employee’s right to receive, and an employer’s legal obligation to provide, reasonable accommodations related to pregnancy.

Endotes

1. Ben Gitis et al., 1 in 5 Moms Experience Pregnancy Discrimination in the Workplace, Bipartisan Policy Center, Feb. 11, 2022: https://bipartisanpolicy.org/blog/bpc-morning-consult-pregnancy-discrimination/
2. See 42 U.S.C. § 2000gg-1.
3. This article was written prior to the adoption of the Final EEOC Regulations.
4. Employment Considerations During Pregnancy and the Postpartum Period, ACOG, April 2018: https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/04/employment-considerations-during-pregnancy-and-the-postpartum-period