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Congress passed the Pregnant Workers Fairness Act (PWFA) in July 2023, and its regulations became effective June 18.
Meghan A. Collier
Previously, pregnancy and childbirth typically did not trigger protection under the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA). The PWFA is now in place to fill those gaps, mandating that covered employers allow women to continue working to the greatest extent possible despite limitations from pregnancy, childbirth, and related medical conditions.
The PWFA applies to employers with 15 or more employees and covers not only current employees, but also job applicants and new hires. Under the PWFA, employers must provide reasonable accommodations to employees and applicants with known limitations due to pregnancy, childbirth, or a related medical condition.
Modeled after existing laws and regulations, such as the ADA, the PWFA includes requirements for an interactive process, reasonable accommodations, and the application of an undue hardship exception.
The “interactive process” methodology involves two-way communication between an employer and employee or applicant to help identify limitations and potential reasonable accommodations. The PWFA emphasizes that an employer should not unilaterally impose an accommodation; there should be communication with the employee or applicant. In other words, it is inadvisable for businesses to take a one-size-fits-all approach to accommodations under the PWFA.
Notably, the PWFA does not require employers to make accommodations that would cause an “undue hardship.” A recent Supreme Court case defines undue hardship as “substantial increased costs in relation to the conduct of its particular business.” This is a high standard; a mere inconvenience will not be enough to show an undue hardship.
What kinds of accommodations are appropriate? The PWFA contains a list of common reasonable accommodations that may be requested by a pregnant employee, called “predictable assessments.”
These include (1) allowing an employee to carry or keep water near and drink as needed; (2) allowing an employee to take additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee to take breaks to eat and drink. Accommodation requests of this nature should be routinely granted.
However, accommodations can be much more involved than those listed above. A key part of the PWFA allows the temporary suspension of one or more essential functions of a job, and “temporary” is defined as up to 40 weeks. For example, if a job requires the ability to lift heavy objects, but a medical condition related to pregnancy or childbirth requires a “lifting restriction,” the employer is expected to temporarily alter the nature of the job — or provide an alternative assignment. Other examples include changing a work schedule, such as having shorter hours, part-time work, or a later start time, and the option to telework.
Importantly, the PWFA is clear that unpaid leave is a last resort that should only be utilized if there are no other reasonable accommodations that can be provided absent undue hardship.
Finally, when an employer is asked to provide accommodation for a condition covered under the PWFA, it is essential to move forward. Unnecessary delay may result in a violation of the PWFA and potentially lead to costly litigation. Employers should view these temporary accommodations as an opportunity to build long-lasting relationships with their employees. Women are approximately half of the national workforce, after all.
Meghan A. Collier, an associate attorney with Decker Jones, P.C., advises clients on a variety of matters, including real estate, business, and probate. She graduated magna cum laude from Texas A&M Law School. She interned with the United States District Court and U.S. Attorney’s Office, both in Dallas.