US - The Pregnant Workers Fairness Act Mandates Reasonable Accommodations to Workers

Overview

The PWFA requires employers to provide reasonable accommodations to workers with known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause significant difficulty or expense to the employer. The Equal Employment Opportunity Commission (EEOC) began accepting charges under the PWFA for situations arising on or after June 27, 2023 and will need to issue a proposed version of its own regulation by the end of the year for public input.

The PWFA supplements existing laws related to pregnancy discrimination but differs in subject and scope by focusing on employee accommodations and providing coverage for physical and mental conditions beyond those that qualify as a disability, including fertility treatment, postpartum depression, abortion, and pregnancy loss. The PWFA will not replace existing federal, state, or local laws that are more protective of affected workers.

Employers and Employees Covered by the PWFA

The PWFA applies to employers with 15 or more employees and covers employees and applicants who can perform the essential functions of the role, with or without reasonable accommodation, or if their inability to perform an essential function is temporary and can be reasonably accommodated.

Reasonable Accommodations

While the PWFA does not define “reasonable accommodations,” the EEOC refers to the House Committee on Education and Labor Report for examples, which include closer parking, flexible hours, appropriately sized uniforms and safety apparel, additional break time, leave or time off to recover from childbirth, and exclusion from strenuous or unsafe activities. It is speculated that a request to work from home could be interpreted as a reasonable accommodation under the PWFA. 

Reasonable accommodations must be provided through an “interactive process” in which a good-faith conversation takes place between the employer and worker seeking the accommodation. A worker does not need to use specific words or phrases, such as “pregnancy” or “reasonable accommodation” to initiate this process.

Employer Restrictions & Penalty

Under the PWFA, an employer may not require an employee to accept an accommodation without a discussion about the accommodation or require an employee to take leave if the employee can keep working under an alternative option. An employer cannot retaliate against an individual for reporting unlawful discrimination under PWFA or participating in a PWFA proceeding. If a qualified applicant needs reasonable accommodation, an employer cannot deny the applicant employment opportunities on that basis. If an employer violates the PWFA, it will need to compensate the employee with back pay, reinstatement, and/or reasonable attorney’s fees.

Considerations for Employers

In anticipation of the EEOC’s regulations, employers may wish to revisit existing disability and pregnancy policies, consider how to best provide reasonable accommodations, train supervisory staff to recognise potential requests for accommodation, continue to monitor any additional guidance from the EEOC, and seek legal counsel regarding the application of these new requirements.