Ready or Not: The PWFA Is Now Law
By Adam Morell, JD, Assistant Vice President, Product Compliance, Sedgwick
The absence management world changed on June 27, 2023, when the Pregnant Workers Fairness Act (PWFA) went into effect. And it’s a game-changer. The law (H.R. 1065)1 was included in the 2022 year-end federal omnibus legislation. The Equal Employment Opportunity Commission (EEOC) released draft regulations on Aug. 11, and an open comment period for the public to submit comments to the proposed regulations ends on Oct. 11, 2023.
The PWFA prohibits employment practices that discriminate against qualified employees seeking reasonable accommodations for issues related to pregnancy, childbirth, or related medical conditions. A primary provision is the obligation for employers to have an interactive dialogue with pregnant employees who request accommodations. This is similar to the interactive process for accommodations covered by the Americans with Disabilities Act (ADA). Fortunately, the PWFA adopts the same meanings of “reasonable accommodation” and “undue hardship” as defined by the ADA.
Some have asked why the PWFA is necessary. The new law addresses gaps in protection for pregnant women under federal law. A few examples of the gaps it will fill:
- A routine pregnancy is not a disability under the ADA.
- The Pregnancy Discrimination Act2 prohibits discrimination against pregnant employees, but it does not require employers to accommodate pregnant employees unless employers do so for other, similarly situated employees.
- The federal Family and Medical Leave Act (FMLA) has eligibility requirements (for example, required tenure and hours worked, as well as 50 employees in a 75-mile radius) that exclude many employees.
Differences Between the PWFA and the ADA
The PWFA is broader and gives pregnant employees or those affected by pregnancy and childbirth greater rights than employees who are only covered by the ADA. Conditions covered by the PWFA may be minor, modest, or episodic impediments. For example, a pregnancy-related condition does not have to be disabling to warrant coverage under the PWFA. Another difference is that the PWFA expressly requires employers to consider granting accommodations that relieve an employee from performing an essential job function if it is temporary. Compare this with the ADA, which specifically says that, for employees to be covered, they must be able to do their essential job functions (with or without an accommodation).3
Also, under the PWFA, employers may not require an employee to take leave if the employee seeks a reasonable at-work accommodation. While it is best practice with the ADA to keep employees at work, the law doesn’t require a workplace accommodation.
Perhaps the biggest difference between provisions of the ADA and PWFA is an employer’s duty to collaborate with employees and engage in the interactive process. The PWFA expressly prohibits an employer from imposing an accommodation unless it was arrived at through the interactive process. The ADA has no such prohibition, and case law4 has borne that out. In fact, many cases have held that if there is more than one accommodation that allows an employee to do a job, the employer may choose the accommodation even if it is contrary to the employee’s preference.
This is not the case with the PWFA, which requires employers to have a documented interactive dialogue with employees seeking accommodations covered by the PWFA.
While it’s important to emphasize that we are working with draft regulations from the EEOC,5 a few provisions are worth noting:
- The near future: H.R. 1065 states that employers must consider accommodation requests that require suspending essential job functions as long as, among other things, the employee will be able to resume those functions in the near future. The proposed regulations advise that, generally, the near future is considered up to 40 weeks from the suspension of the essential functions. In some cases, this 40-week period could run twice — once before delivery and once afterward.
- Documentation restrictions: The proposed regulations suggest that some specific accommodations will virtually always be considered reasonable and will not require documentation. These include allowing an employee to:
- carry water and drink, as needed, in the employee’s work area;
- take additional restroom breaks;
- sit if the employee’s work requires standing and stand if the employee’s work requires sitting; and
- take breaks, as needed, to eat and drink.
- Delay: The draft law reminds employers that pregnancy (and conditions that are prompted by it) are, by definition, temporary. Therefore, unnecessary delays in responding to an employee’s accommodation request that is covered by the PWFA may be a violation of the law. The EEOC suggests that employers consider an interim accommodation during the interactive process, if necessary.
Employers should read the proposed regulations, submit comments (if applicable) before Oct. 11, and prepare for the law no matter what its final wording may be. A few suggestions to consider:
- Training: As is often the case with workplace laws, absence and disability management decision-makers (such as leave specialists and human resources staff) should be trained on the regulations of the PWFA. Managers and supervisors who play an important role in absence-related decisions should also be trained. The curricula should highlight the PWFA’s focus on stay-at-work accommodations and the interactive dialogue. And, despite the fact that the PWFA adopts the same meaning of reasonable accommodation and undue hardship as the ADA, the definition of an eligible employee is different. Under the PWFA, an employee can be qualified if the employee cannot temporarily perform essential job functions, presuming that:
- any inability to perform an essential function is temporary;
- the essential job function could be performed in the near future; and
- the inability to perform the essential function can be reasonably accommodated.
- Communications: Now is a great time to review your accommodation-related communications. After all, when employees miss work for any kind of health reason (pursuant to federal or state FMLA, ADA, short-term disability, workers’ compensation, and other programs), it can be a scary and uncertain time for them. Employees rely on employers to provide comprehensive and clear messaging about processes. While your messaging may have met this standard in the past, your pre-PWFA accommodation communications may now be obsolete.
For example, you may have told employees that your organization is committed to providing reasonable accommodations to qualified employees with a disability pursuant to the ADA. That type of language was fine up until June 27. To stay current, consider adding “the PWFA” to that sentence as well as removing the word “disability” since an employee does not need a disabling condition for PWFA coverage.
At this time, the PWFA doesn’t require notification of the law’s provisions to pregnant employees who request accommodations. However, in June, the EEOC released a PWFA poster6 that should be posted on your intranet and in a conspicuous location if your organization has employees who work on-site.
As with most employment laws, if an applicable state or local law provides an employee with more pregnancy-related protections than the PWFA affords, the employer must abide by the greater employee benefit. In the pregnant workers’ arena, this often includes the type of documentation an employer may seek. For example, in Minnesota, a pregnant employee is not required to obtain advice from a licensed healthcare provider or certified doula to request more frequent restroom, food, and water breaks; changes in seating; and limits on lifting more than 20 pounds.7
If the state’s requirements exceed those in the final version of the PWFA, employees in Minnesota will be covered by the state’s greater protections. The same will apply in all states with provisions that are more employee friendly. Make sure your absence management decision-makers have the tools they need to track and comply with these laws.8
And finally, do not allow your presumed knowledge or expertise of the ADA to give you a false sense of security. Phrased another way, employers should not let themselves fall into the complacency trap of thinking that they know all about the guidelines of the ADA and don’t need further help.
The EEOC has made clear that there is no grace period for employers to comply with the PWFA. In a statement issued June 27, 2023, the agency said that, as of that day, it was accepting charges of PWFA discrimination. It is easier to prepare than to react. If you haven’t already done the planning, consider taking steps now to comply with the PWFA.
- Congress.GOV. H.R. 1065 — Pregnant Workers Fairness Act. Retrieved from https://www.congress.gov/bill/117th-congress/house-bill/1065/text
- Equal Employment Opportunity Commission. Fact Sheet: Disability Discrimination. Retrieved from https://www.eeoc.gov/laws/guidance/fact-sheet-disability-discrimination
- JUSTIA US Law. Elledge v. Lowe’s Home Centers, LLC, No. 19CV1069 (4th Cir. November 18, 2020). Retrieved from https://law.justia.com/cases/federal/appellate-courts/ca4/19-1069/19-1069-2020-11-18.html
- Equal Employment Opportunity Commission. Summary of Key Provisions of the EEOC’s Proposed Rule to Implement the Pregnant Workers Fairness Act (PWFA). Retrieved from https://www.eeoc.gov/summary-key-provisions-eeocs-proposed-rule-implement-pregnant-workers-fairness-act-pwfa
- Equal Employment Opportunity Commission. Pregnant Workers Fairness Act (PWFA). Healthcare Poster. Retrieved from https://www.eeoc.gov/sites/default/files/2023-05/PWFA%20%28Healthcare%20Poster%29-11_508%20FINAL.pdf
- Minnesota Legislature. Nursing Mothers, Lactating Employees, and Pregnancy Accommodations. Minn. Stat. § 181.939(2). Retrieved from https://www.revisor.mn.gov/statutes/cite/181.939