CLIENT ALERT: The Pregnant Workers Fairness Act ("PWFA")

On April 15, 2024, the U.S. Equal Employment Opportunity Commission issued a final rule to implement the PWFA. The following FAQs highlight some of the key provisions.

What is the Pregnant Workers Fairness Act (“PWFA”)?

• The PWFA requires a covered employer to provide a “reasonable accommodation” for a qualified employee’s physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” The PWFA applies to private and public sector employers that have 15 or more employees.

How can workers request reasonable accommodations, and how should employers respond?

• The employee or applicant should tell the employer that they have a limitation—and that they need an adjustment in their working conditions (i.e., an accommodation). For example, the worker can say:
  • “I’m having trouble getting to work at my scheduled starting time because of morning sickness.”
  • “I need more bathroom breaks because of my pregnancy.”

Once the employer has knowledge that an employee requires an accommodation, it should engage in the “interactive process” with the employee or applicant. The “interactive process” means simply that the employer and employee communicate, whether by talking or some other form of two-way communication, about the known limitation and the adjustment or change needed at work.  Employers should respond promptly to accommodation requests.

What are some examples of possible reasonable accommodations under the PWFA?

• Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
• Changing food or drink policies to allow for a water bottle or food;
• Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;
• Changing a uniform or dress code or providing safety equipment that fits;
• Changing a work schedule, such as having shorter hours, part-time work, a later start time, or an earlier end time;
• Telework;
• Temporary reassignment;
• Temporary suspension of one or more essential functions of a job;
• Leave for health care appointments;
• Light duty or help with lifting or other manual labor; and
• Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

This list is not exhaustive.

What constitutes an “undue hardship” to an employer?

• The PWFA follows the definition of the term “undue hardship” under the American Disabilities Act (“ADA”). Generally, undue hardship means significant difficulty or expense for the operation of the employer. 
• The final rule outlines some factors to be considered when determining if undue hardship exists:
  • Consideration of the length of time that the employee will be unable to perform the essential function(s);
  • If necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s) in question; and
  • Whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

This list is not exhaustive.

What should employers remember about the PWFA?

• Train supervisors about the PWFA.
• In many instances under the PWFA, a discussion with the applicant or employee may be sufficient and supporting documentation will not be needed. Employees do not need to provide medical notes to their employers.
• An employer may not require that the employee seeking the accommodation be examined by a health care provider selected by the employer.
• Covered employers must not deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation or require an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working.
• Covered employers must not punish or retaliate against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation).

Please contact a member of Potter Anderson's Labor & Employment group with any questions you might have relating to PWFA.

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