2024 marks a monumental year for changes in employment law, which has affected workplaces across the country. Recently, the Equal Employment Opportunity Commission (EEOC) expanded accommodations for pregnant workers through the Pregnant Workers Fairness Act (PWFA), which requires employers to make reasonable accommodations for pregnant employees to help mitigate limitations related to pregnancy, such as accommodations for childbirth and related physical or mental health conditions.
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The PWFA was enacted for two key reasons: (1) to ensure that pregnant employees can continue to work for as long as they are able to and want to, and (2) to maintain the health of pregnant employees and their pregnancies.
Effective June 18, 2024, the PWFA applies to employers with 15 or more employees, including the federal government as well as private, state, and local employers. Here’s what covered employers need to know to support their pregnant workers and avoid unnecessary EEOC charges and litigation.
What are employers’ obligations under the new law?
The PWFA requires covered employers to “make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless [doing so] would impose an undue hardship on the operation of the business.”
What “limitations” must be accommodated and how?
The PWFA requires that covered employers accommodate their employees’ health needs at work arising from pregnancy, childbirth, and related conditions. Employers must accommodate major and ongoing limitations, as well as minor and acute limitations. Employees who can perform their regular job duties may still seek accommodations if it’s to avoid pregnancy risks or alleviate pain. This marks a major change from the requirements of the Americans with Disabilities Act (“ADA”), which requires employers to accommodate only those “disabilities” that significantly limit major life activities.
Below are some of the common “limitations” that can arise from pregnancy, childbirth, and related conditions, and potential employer accommodations, as suggested by the new regulation:
- Back pain that is exacerbated by standing (provide a chair)
- Fatigue (provide breaks or swap night shifts for day shifts)
- Need to miss work for prenatal care or IVF appointments (grant time off or schedule change requests)
- Risk posed by working with chemicals (change job duties or provide effective PPE)
- Need to eat more often due to breastfeeding (provide additional lunch break or allow snacking)
- Risk of contracting communicable diseases (authorize remote work)
- Need to recover from childbirth or miscarriage (provide leave)
- Difficulty traveling long distances (reassign to closer location)
What triggers an employer’s obligation to accommodate?
Employers are obligated to provide an effective accommodation—or work with the employee to identify an effective accommodation—as soon as an employee makes “known” to their supervisor that they are pregnant and have a limitation related to pregnancy, childbirth, or a related medical condition. Employers should remember that this is not a request for accommodation, as the PWFA automatically triggers the duty to accommodate pregnant workers, even without a formal request.
For example, it is sufficient for an employee to tell their direct supervisor, “I’m struggling to stand at my designated post for more than one hour because of pelvic pain” or “I’m worried about hurting my baby if I stand for more than one hour at a time.”
What constitutes “undue hardship” that excuses an employer from accommodating?
Under the PWFA, “undue hardship” is defined as significantly difficult or expensive to the employer, the same as defined under the ADA. “Undue hardship” can include accommodation that is excessively costly, extensive, substantial, or disruptive, or requiring a fundamental altering of the business’s nature or operation. If an employer believes the employee’s requested accommodation is significantly difficult or expensive, the employer is required to work with the employee to try to identify an effective alternative. If the employer still deems the accommodation an “undue hardship,” then the employer must be prepared to present evidence should their accommodation denial be challenged.
What are some common pitfalls and how can employers avoid them?
1. Do not complete ADA or FMLA paperwork.
Much of the information required from employees in ADA and FMLA paperwork extends beyond the scope of what employers can ask for under the PWFA. Employers requesting this level of documentation are risking future claims that they have interfered with the employee’s rights, imposed unnecessary delay, or retaliated against them.
The EEOC recommends that employers instead adopt a separate “Reasonable Accommodation Request Form” to document employee requests in writing. Although, completing this form should not and cannot delay the accommodation process, which can be triggered by a simple verbal request.
2. Do not request medical documentation from the employee’s healthcare provider unless the request is “reasonable” and limited in scope.
“Reasonable documentation” is “the minimum that is sufficient” to:
(a) confirm the medical or physical condition;
(b) confirm that this condition is “related to, affected by, or arising out of pregnancy, childbirth, or related medical condition”;
(c) describe the adjustment or change at work that is needed (e.g., weight-lifting restrictions or rest breaks); and
(d) provide an estimate of the expected duration of the need for accommodation.
Most accommodation requests, such as permission to take additional breaks for snacks and/or nursing breaks during pregnancy, do not require “reasonable documentation.” In other words, an employee need only “self-confirm” that they are pregnant and have a particular need. The PWFA provides examples of other situations when it is not reasonable for employers to request medication documentation.
3. Do not delay accommodations covered by the PWFA.
The PWFA was designed to encourage employers to respond to requests and provide accommodations quickly, without an extensive formal process. If, for example, the employer cannot provide accommodation immediately for a sudden medical need, the EEOC strongly recommends that employers provide an “interim accommodation” to reduce legal risk. This can include a temporary one-week change in the employee’s schedule until a long-term accommodation can be made.
4. Do not prevent leave on the basis of FMLA ineligibility.
Leave is considered a “reasonable accommodation”—absent undue hardship to the employer—whether or not the employee is eligible for FMLA or other time off. However, leave cannot be imposed if the employee does not want to take leave and another accommodation would allow them to keep working.
5. Do not penalize, coerce, or retaliate against an employee for requesting an accommodation.
Doing so violates the PWFA. Beyond the obvious actions such as termination, demotion, or reduction in pay, employers might unwittingly penalize an accommodated employee in other ways. For example, failing to adjust performance metrics for an employee working fewer hours due to additional breaks or time off, or assessing late notices for an employee who has an accommodation to be absent from or late to work.
What can employers do now to comply with the PWFA?
Employers should review and update their accommodation policies and procedures to ensure that workers affected by pregnancy, childbirth, or related medical conditions are not excluded from reasonable accommodation consideration. Employers should also revise or create a form for employees to use to request an accommodation under the PWFA. Working with employment counsel will help ensure that forms used to collect medical information comply with PWFA limitations on supporting documentation. Employers should work with employment counsel to update their Request form to ensure they are compliant with the PWFA and different than those required under the ADA.
Further, it is important that employers train their supervisors, managers, and human resources professionals to recognize and respond to accommodation requests, as well as regarding the various federal and state laws that apply in pregnancy-related situations. Teaching supervisors/managers to recognize and respond to accommodation requests and engage and interact with the pregnant worker will ensure a smooth and quick accommodation process.
Gallagher & Kennedy, P.A. will continue to monitor and report on the developments and progress concerning the PWFA and its impact on employers and their operations.
Author: Haley Harrigan is a shareholder at Gallagher & Kennedy and Chair of the firm’s Employment and Labor Law Department. She regularly advises employers regarding the complicated patchwork of both state and federal employment laws, including wage and hour laws, restrictive covenants, Title VII claims, and workplace issues. Email: haley.harrigan@gknet.com
