Challenges of the PWFA: A Q&A with Chris Williams

In June 2023, the U.S. Equal Employment Opportunity Commission created the Pregnant Workers Fairness Act, which requires covered employers to provide accommodations to a worker’s disclosed limitations related to pregnancy, childbirth or related medical conditions. What kind of challenges might that bring employers? We asked Chris Williams, employment practices liability product manager at Travelers.

What is the Pregnant Workers Fairness Act?

According to the U.S. Equal Employment Opportunity Commission, the Pregnant Workers Fairness Act allows for reasonable accommodations to be made at the request of an employee or job applicant who is facing work limitations as a result of pregnancy, childbirth or related medical conditions. The act took effect on June 27, 2023, with the EEOC’s final rule and interpretive guidance effective on June 18, 2024. The act requires employers to provide accommodations, unless it will result in an “undue hardship” for the company. This mandate does not replace any other laws on the federal, state or local level that are more protective of workers, and it only applies to accommodations.

Why should businesses worry about it?

If a public sector or private employer has 15 or more employees, then the Pregnant Workers Fairness Act applies and the company’s or agency’s workers and any job applicants are part of a protected class. If any of those individuals request a reasonable accommodation citing the act, an employer must consider the request, and in some cases comply with the request, or face the possibility of receiving and defending an EEOC charge and subsequent claim, which could become costly.

Reasonable accommodations can include things like additional work breaks for food, water or rest purposes; workstation setups, such as providing a chair or stool for the employee to sit on while working; reducing work hours or a change to an employee’s work schedule; company uniforms that might need to be changed so the employee comfortably fits; leaving work to attend health care or medical appointments; reducing or eliminating manual labor; working from home; and a temporary suspension of some essential job functions.

How can employers mitigate this risk and avoid a claim situation?

With terms in the EEOC’s final rule including “reasonable accommodations” and “undue hardship,” it is an issue that might bring some confusion or lack of clarity. Conferring with employment counsel to ask questions and make sure the company is aware of and complying with all obligations is a smart way to address the exposure and help prevent an infraction from happening.

Likewise, it’s important to make sure that company leadership and managers are familiar with the Pregnant Workers Fairness Act and the kind of accommodation requests that might be coming. Having a discussion with an employee or job applicant who has made a request is a good idea, so an employer can get a clear idea about what is being asked and whether the accommodation qualifies under the act or would result in an undue hardship for the employer. Never ignore an employee’s request.

Related: EEOC’s final rule for the PWFA clarifies employer responsibilities

What kind of Employment Practices Liability risks do companies face when it comes to workers who are part of protected classes, like pregnant employees?

Discriminating against an employee or job applicant on the basis of race, religion, age, sex, gender identity, sexual orientation, origin, disability or genetic information is prohibited based on laws enforced by the EEOC. Some states have also enacted laws protecting workers on the basis of additional categories, such as height, weight, unemployment status, political affiliation and personal appearance. Taking an adverse action against an individual because of those protected classes can lead to an EPL claim alleging discrimination, harassment or retaliation. Knowing what the protected classes are where the employer and employees are located is one way to mitigate exposure.

Consulting with employment counsel before taking any adverse action against an employee is also recommended. Finally, consider securing an EPL insurance policy and taking advantage of the risk management resources that insurance providers make available. It could result in an employer taking a step that helps prevent a costly claim.