Pregnant Workers Fairness Act delivers new obligations for employers

On June 27, 2023, the federal Pregnant Workers Fairness Act, 42 U.S.C. §2000gg, et seq. (the PWFA) went into effect. The PWFA is intended to fill a gap in existing federal law by explicitly requiring covered employers (those with 15 or more employees) to provide reasonable accommodations to qualified applicants and employees related to pregnancy, childbirth or a related medical condition.

Many New York employers initially greeted the PWFA with a big yawn, since New York state and city laws have long required reasonable accommodation of pregnancy- and childbirth-related limitations. However, on Aug. 6, 2023, the EEOC proposed extensive regulations with voluminous accompanying guidance (the Proposed Regulations) outlining far-reaching implications for the PWFA beyond what was expected upon the law’s passage. See 88 Fed. Reg. 54,714 (Aug. 11, 2023).

As a result, even New York employers who are already accustomed to providing pregnancy- and childbirth-related accommodations will now need to adopt new approaches to these conditions.

This article summarizes the key features of the PWFA, highlights areas that will require special attention and provides practical suggestions for compliance. It also addresses the Proposed Regulations (even though they have not yet been formally adopted) because it is likely that many of the proposals therein will be implemented, even if in revised format.

What Qualifies as a Covered Limitation?

The PWFA requires reasonable accommodation for a “known limitation” related to pregnancy, childbirth or a related medical condition, absent undue hardship. Importantly, the statute makes clear that the limitation does not need to meet the definition of a “disability” under the Americans with Disabilities Act (ADA), which means that the condition need not substantially limit a major life activity, and can instead be “modest, minor and/or episodic.”

The Proposed Regulations include a long list of medical conditions that could, at least potentially, be “related” to pregnancy and childbirth, including health problems related to maintaining a healthy pregnancy and lactation after childbirth. Notably, the EEOC’s commentary on the Proposed Regulations explains that an accommodation obligation may arise even when an employee is not pregnant, e.g., in connection with infertility treatment, abortion or use of birth control.

Who is a Qualified Employee or Applicant?

An employee or applicant can be “qualified” under the PWFA in one of two ways. First, they may be qualified if, with or without reasonable accommodation, they can perform the essential functions of the job, which mirrors the definition of “disabled” under the ADA. Notably, the Proposed Regulations analyze leave accommodations by requiring employers to consider whether the employee will be able to perform the essential functions of the job at the end of the leave when they return to work.

Second—and different from the ADA—an employee or applicant is qualified if they cannot perform the essential functions of the job “for a temporary period,” but will be able to do so “in the near future,” defined in the Proposed Regulations as within 40 weeks. Accordingly, absent undue hardship, an employer may have to accommodate a pregnancy or childbirth-related limitation by temporarily suspending or reassigning essential job functions.

Helpfully, the Proposed Regulations offer some ways in which employers can ameliorate the impact of temporarily removing essential functions, e.g., by temporarily transferring the accommodated employee or assigning the employee other job functions.

Controversially, the EEOC’s commentary suggests that PWFA accommodation requires an employer to consider both a leave of absence and then, when the employee returns from leave, suspending essential functions for an additional temporary period.

The Interactive Process

The PWFA provides that an employer cannot require an employee “to accept an accommodation other than any reasonable accommodation arrived at through the interactive process.”

As a practical matter, this means that employers will be expected to engage in an interactive process in almost all cases following a request for an accommodation due to pregnancy, childbirth or a related medical condition, even though failure to engage in the interactive process does not, in and of itself, violate the PWFA. The expected interactive process is essentially the same informal “cooperative dialogue” that employers are familiar with under New York state and city laws and the ADA, and should be aimed at identifying limitations and potential accommodations.

Although most employers surely understand the importance of conducing the interactive process promptly, the Proposed Regulations provide that “unnecessary delay” may itself constitute a prohibited practice under the statute.

When Can Employers Request Supporting Documentation?

Under the ADA, employers are accustomed to requesting medical documentation from an employee to substantiate a reasonable accommodation request and to ground interactive process discussions. According to the EEOC, such requests are permitted when the disability or need for accommodation is not “known or obvious.” See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA, 7/27/00.

In contrast, the PWFA limits an employer’s ability to request supporting documentation. In its commentary, the EEOC notes that pregnant workers may experience limitations—and require accommodations—before they have had any medical appointments, thus making it difficult to obtain documentation.

Aside from this general concern about requesting documentation, the Proposed Regulations list four circumstances in which an employer simply may not request documentation to support a PWFA accommodation request: (i) when both the limitation and need for accommodation are obvious; (ii) when the employee has already provided sufficient information; (iii) in the case of pregnancy, the accommodation falls within one the four presumptively reasonable categories (discussed below); and (iv) when the accommodation concerns lactation or pumping.

The PWFA also categorically prohibits employers from requiring a medical examination by their selected health care provider in connection with a PWFA accommodation request.

Presumptively Reasonable Accommodations

The Proposed Regulations list four workplace modification that will “virtually always be found to be reasonable accommodations”:

• allowing an employee to carry water and drink as needed;

• allowing additional restroom breaks;

• allowing an employee to stand or sit as needed; and

• allowing additional breaks as needed to eat and drink.

Although these accommodations are technically still subject to an undue hardship defense, employers will almost always be expected to provide them, and without requesting supporting medical documentation.

Accommodation Examples

The Proposed Regulations contain a long, yet non-exhaustive, list of possible reasonable accommodations employers should consider, many of which are similar to those required under the ADA. These include job restructuring, breaks, leave, providing appropriately sized uniforms, light duty, telework, providing reserve parking spaces if the employee is otherwise entitled to use employer-provided parking and, as discussed above, temporarily suspending or reassigning essential job functions.

Like the ADA, such accommodations are not required if they would impose an undue hardship on the employer, although the PWFA provides a slightly different list of factors employers must consider in evaluating what constitutes an undue hardship.

Leave Accommodations? (Not So Fast!)

The PWFA prohibits employers from requiring a covered employee to take a paid or unpaid leave of absence if another reasonable accommodation can be provided. The EEOC’s commentary explains this apparent hostility by explaining—without any empirical evidence and citing only legislative history—that employers sometimes place employees on leave, or direct them to use leave, when they are notified of a pregnancy. The EEOC concludes that workers on unpaid leave risk economic security and may not have sufficient leave to take after they give birth if forced to take leave earlier in their pregnancy.

Of course, the EEOC’s commentary does not prohibit a leave accommodation if it is requested by the employee, or if leave is the only accommodation that would not cause undue hardship. However, it does mean that leave should not usually be the first PWFA accommodation considered.

Related: Preparing for the Pregnant Worker’s Fairness Act

Practical Steps Toward Compliance

As the foregoing should make clear, providing reasonable accommodations under the PWFA raises complex and unique issues beyond those with which employers are familiar under the ADA and existing New York law. To ensure compliance, employer should consider taking at least the following measures:

• Reviewing policies to ensure they appropriately cover PWFA reasonable accommodation obligations and procedures for requesting an accommodation.

• Training managers and human resources professionals on the nuances of the PWFA so that they can spot issues, understand how to respond to accommodation requests, and effectively engage in the interactive process within the boundaries of the law. Knowing when and how to request information and supporting medical documentation will be crucial.

• Updating reasonable accommodation forms and questionnaires used in the accommodation evaluation process—or creating separate forms for pregnancy and childbirth related accommodations—since many of the PWFA definitions and approaches are different than under the ADA.

• Coordinating PWFA accommodations parental leave, disability benefits and state-mandated paid leave entitlements such as the New York Paid Family Leave.

In short, employers should meet the PWFA with neither a nonchalant yawn nor a reactionary gasp, but, rather, with a clear and measured plan to addressing what will undoubtedly be a dramatic uptick in accommodation requests related to pregnancy and childbirth.

Christopher J. Collins is a partner in Sheppard Mullin’s labor and employment practice group in the firm’s New York office. Lindsay C. Stone is an associate in the firm’s labor and employment practice group.