Pettygrove and Williamson: The Pregnant Workers Fairness Act and EEOC regulations

The Pregnant Workers Fairness Act , PWFA, went into effect on June 27, 2023. In a nutshell, it confirms and expands upon existing workplace rights and protections for pregnant workers, with a focus on providing pregnancy-related accommodations.

The U.S. Equal Employment Opportunity Commission issued its proposed PWFA regulations in August 2023, and the comment period closed in October. EEOC has not yet issued its final PWFA rules, but it issued interim final rules in mid-February 2024 amending its existing procedural and definitional regulations to incorporate the PWFA, suggesting its final PWFA regulations are imminent.

Assuming those final regulations are anywhere close to the proposed version, they’ll contain several new–and perhaps surprising–concepts employers will need to know (and train on) to ensure compliance.

Prior federal workplace pregnancy law

The PWFA builds on existing protections against pregnancy discrimination created under Title VII of the Civil Rights Act and the Americans with Disabilities Act, or ADA.

Pre-PWFA, those laws essentially required covered employers to accommodate pregnancy-related medical limitations of otherwise qualified pregnant employees (or applicants) through on-the-job accommodations or leave: 1) if those limitations were substantial enough to meet the ADA’s definition of “disability”; and 2) to the same extent that it accommodated non-pregnant employees “similar in their ability or inability to work.” Young v. United Parcel Service, Inc., 575 U.S. 206, 221 (2015).

In essence, an employer’s legal obligation to accommodate a worker with a pregnancy-related limitation was determined largely by that employer’s own past record of how it treated other employees with similar restrictions, and only where the worker was “impaired” or “substantially limited” in a major life activity.

Where those criteria were met, the analysis of what particular accommodation was (or wasn’t) required was governed by “traditional” ADA principles. One such principle is the well-established understanding that employers are not obligated to remove, or excuse a disabled employee from performing, “essential” job functions. E.g., EEOC v. Wal-Mart Stores, Inc., 38 F.4th 651, 657 (7th Cir. 2022).

What’s new under PWFA and EEOC’s regulations

As with the ADA and Title VII, PWFA applies to both public and private employers with at least 15 employees. Similarly, it extends rights to both employees and applicants. It incorporates the ADA’s existing definitions and standards for many–but not all–important concepts, including: “reasonable accommodation,” “undue hardship,” and the “interactive process.”

It prohibits covered employers from retaliating against those who request pregnancy-related accommodation. There, the similarities largely end.

The PWFA leaves behind the notion that an employee with a pregnancy-related impairment need only be treated “at least as well” as those with non-pregnancy-related impairments.

Instead, it requires reasonable accommodation of pregnancy-related conditions regardless of whether or how the employer has previously treated anyone else. This “free-standing” accommodation obligation is triggered by an employee’s “known limitation” related to pregnancy whether or not that limitation meets the ADA’s “substantial limitation” standard.

EEOC’s presumptive regulations further highlight the expansive protections and coverage of the statute. For example, “ pregnancy” includes current, past, potential, or intended pregnancy, and the “related medical conditions” that can give rise to an accommodation obligation includes, inter alia: a miscarriage, stillbirth, or abortion; infertility; fertility treatment; lactation and related conditions; menstrual cycles; postpartum depression; and changes in hormone levels. EEOC further identifies certain accommodations that it will consider reasonable (and not an undue hardship) in “virtually all cases,” such as: allowing water/drinks in the work area; allowing standing employees to sit (and vice versa), additional breaks to drink and eat, and providing reserved parking.

Strictly speaking, the PWFA is not a “leave statute” and does not create an entitlement to any specific amount of leave. However, courts have long recognized that leave may be a reasonable accommodation under the ADA, and EEOC’s PWFA regulations specifically name “paid and unpaid leave” as a potential reasonable accommodation.

The exact amount of leave that may be required will vary based on the specific circumstances of each employee, and existing ADA case law addressing that analysis varies by jurisdiction. The Seventh Circuit’s standard is comparatively employee-friendly in that—as a default proposition—“an employer is not required to accommodate a multi-month or indefinite leave of absence.” Ivens v. GK N. Childcare Corp., No. 23-2586, 2024 WL 382452, at *2 (7th Cir. Feb. 1, 2024); see also Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 481 (7th Cir. 2017) (commenting that “a couple of days or even a couple of weeks” may be appropriate).

However, in perhaps their largest departure from traditional ADA principles, EEOC’s PWFA regulations also expressly contemplate that employers must accommodate pregnancy-related limitations by excusing or removing even essential job functions in certain circumstances, and for well beyond “a couple of weeks.”

Specifically, essential job functions must be removed, if needed to reasonably accommodate a known pregnancy-related limitation, for a “temporary period” if the employee is expected to be able to resume performing them in “the near future.” EEOC defines “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future,’” and “in the near future” as “generally forty weeks” (from the date the function was removed).

What should employers be doing to ensure compliance?

Foremost, any covered employer should review their existing written policies and ensure they are updated to clearly acknowledge each of the workplace accommodation obligations now required by law.

For most Indiana employers, that means identifying the organization’s willingness to provide reasonable accommodation that does not impose an undue hardship to: 1) qualified individuals with disabilities (pursuant to the ADA); 2) those whose religious beliefs or restrictions create a conflict with existing procedures (pursuant to Title VII); and 3) employees with known limitations related to pregnancy, childbirth, or related medical conditions (the “new” PWFA standard). Any further written policies or procedures–even if only “internal HR guidance” – also should be reviewed to ensure they incorporate properly PWFA language and principles, particularly flagging any existing standards that would limit consideration of PWFA-governed requests that implicate the removal of essential job functions.

In tandem with shoring up written policies, employers should ensure that HR and every employee with supervisory responsibility receives fulsome training on both “old and new” accommodation standards.

Even where HR is designated as the “subject matter expert” responsible for handling accommodation requests, every supervisor needs to understand that their knowledge and conduct can be imputed to the organization itself, meaning once any supervisor becomes aware of an accommodation request, the employer is responsible for responding in a manner that satisfies applicable law.

All must be taught to avoid “snap judgments” about what is and isn’t workable and instead to ensure robust–and well documented–dialogue demonstrating that the employer fulfilled its obligation to engage in the interactive process in each individual’s situation.

As with the ADA and Title VII, Employers who proactively prepare to process requests PWFA requests are both less likely to face operational disruptions and failure-to-accommodate claims and more likely to create the trust and confidence needed to motivate good employees to stick around and do their best.•

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Joe Pettygrove is a partner and Aaron Williamson is an associate at Kroger, Gardis & Regas, LLP. Opinions expressed are those of the authors.