Key Information on Implementing the Pregnant Workers Fairness Act for Employers

Overview

The Pregnant Workers Fairness Act (PWFA) was signed into law on December 29, 2022, and went into effect on June 27, 2023. Subsequently, the U.S. Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rule Making (Proposed Rule) to implement the PWFA for public inspection on August 7, 2023. This notice was published in the Federal Register on August 11, 2023.

Employer Action Items

If you are an employer covered by the Pregnant Workers Fairness Act (PWFA), it is important to take steps to ensure compliance with the law. The EEOC has already initiated the process of receiving complaints for violations of the law, and accepting charges, under the PWFA. To avoid the risks of fines and lawsuits, employers should take steps now, including making the necessary accommodations that allow their employees to be productive and comfortable at work, to ensure compliance with the PWFA.

Due to the complexities of complying with PWFA requirements, employers are encouraged to seek legal counsel to discuss specific issues and concerns.

Requirements

The PWFA amends the ADA to require reasonable accommodations for a qualified individual’s limitations related to pregnancy, childbirth, or related medical conditions, extending protections to both employees and applicants of certain employers to the extent these individuals have known limitations related to pregnancy, childbirth, or other related medical conditions.

• Employers may be able to defend against breaches to the extent a requested accommodation poses an “undue hardship” for the employer (much like the definition used in the ADA).
• Covered employers include private- and public-sector employers with at least 15 employees, including federal agencies, employment agencies, and labor organizations.
• Of significant importance, note that the PWFA is only applicable to workplace accommodations because existing laws already enforced by the EEOC make it illegal to terminate or otherwise discriminate against workers based on pregnancy, childbirth, or related medical conditions.
• The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.
• Currently, more than 30 states and localities have laws providing accommodations for pregnant workers.

Key Requirements

Under the PWFA, covered employers cannot:

• Require an employee to accept accommodation without a discussion between the worker and the employer about the accommodation.
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for reasonable accommodation.
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working.
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding, such as an investigation.
• Interfere with any individual’s right under the PWFA.

Proposed Rule

The Proposed Rule explains how the EEOC proposes to interpret the PWFA and certain terms in the law. An example includes that the PWFA allows an employee or applicant to be “qualified” even if they cannot perform one or more essential functions of the job, if the inability to perform the essential function(s) is “temporary,” the worker could perform the essential function(s) “in the near future,” and the inability to perform the essential function(s) can be reasonably accommodated.

• The Proposed Rule defines the term “temporary” as lasting for a limited time, not permanent, and may extend beyond “in the near future”.
• The term “in the near future” is defined to be generally a duration of 40 weeks, although the actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires.
• The definition of “essential function” is the same as the definition in the ADA. In general terms, it means the fundamental duties of the job.

The term “reasonable accommodation” is a similar term as that used in the ADA. Generally, it means a change in the work environment or how things are usually done. The proposed rule provides specific examples of possible reasonable accommodations, including each of the following, and seeks input on whether there should be more examples, and for what additional situations:

In addition, the EEOC solicits information and comments on particular issues, including existing data quantifying the proportion of pregnant workers who need workplace accommodations and existing data on the average cost of pregnancy-related accommodations.

Implementation Timeline

• The PWFA has been in effect since June 27, 2023. The EEOC has begun accepting PWFA charges for acts that occur on or after that date.
• The Proposed Rule to implement the PWFT was published in the Federal Register on August 11, 2023.
• The public has until October 10, 2023, to submit comments regarding the Proposed Rule.

Additional Information

• An EEOC summary of the Proposed Rule is available here.
• The EEOC’s Frequently Asked Questions on the PWFA are available at: https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.

For questions regarding this Legislative Update or any other related compliance issues, please contact your Burnham Benefits Consultant or Burnham Benefits at 949‐833‐2983 or inquiries@burnhambenefits.com.