The Pregnant Workers Fairness Act (“PWFA”), signed into law by President Joe Biden on December 27th, 2022, became effective this past July 27th. The PWFA expands and builds upon the existing protections against pregnancy discrimination under Title VII of the Civil Rights Act (“Title VII”) and the reasonable accommodation requirements under the Americans with Disabilities Act (“ADA”).

Succinctly, the PWFA requires covered employers to engage in the “interactive process” and provide a “reasonable accommodation” to a “qualified” employee or applicant with a “known limitation” related to, affected by, or arising out of her pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” Private sector employers with at least 15 employees are considered “covered employers” under the PWFA. Some of the terms and protections under the PWFA are similar to the provisions under the ADA and the existing protections against pregnancy discrimination under Title VII. However, some major distinctions must be kept in mind.

For instance, while pregnancy is not a disability under the ADA, some pregnancy-related “known limitations” may be covered under the PWFA, even if such “limitations” do not meet the definition of a “disability” under the ADA. Furthermore, contrary to ADA, under the PWFA an employee or applicant may be “qualified” even if she cannot perform one or more “essential functions” of the job if the inability to perform the essential function(s) is “temporary,” she could perform the essential function(s) “in the near future,” and the inability to perform the essential function(s) “can be reasonably accommodated.” Accordingly, because the PWFA allows for the temporary suspension of one or more essential functions in certain circumstances, during the interactive process the employer must also consider whether one or more essential functions can be temporarily suspended before a determination is made on whether the employee is “qualified” or not, and before determining whether a reasonable accommodation is viable.

In connection with the PWFA, earlier this week (August 7th) the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a Notice of Proposed Rulemaking (“NPRM”) to implement the PWFA, which you can see here. The proposed rule explains how the EEOC intends to interpret the PWFA and certain terms such as, for example, “known limitation,” “communicated to the employer,” “temporary,” “in the near future” (i.e. 40 weeks), “can be reasonably accommodated,” and “essential functions”. It also provides numerous examples of possible reasonable accommodations and seeks input on whether there should be more examples and for what additional different situations. For instance, among some of the proposed reasonable accommodations, the EEOC proposes the following:

• Frequent breaks;
• Sitting/Standing;
• Schedule changes, part-time work, and paid and unpaid leave;
• Telework;
• Parking;
• Light duty;
• Making existing facilities accessible or modifying the work environment;
• Job restructuring;
• Temporarily suspending one or more essential functions;
• Acquiring or modifying equipment, uniforms, or devices; and
• Adjusting or modifying examinations or policies.

Pursuant to the PWFA, employers cannot: (i) deny a “reasonable accommodation” to a qualified employee or applicant with a “known limitation,” absent “undue hardship;” (ii) require an employee to accept an accommodation without a discussion between the worker and the employer; (iii) deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation; (iv) require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working; (v) retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding; or (vi) interfere with any individual’s rights under the PWFA. Please be advised that, under the proposed rules, the EEOC proposes that an unnecessary delay in responding to a request for a reasonable accommodation may result in a violation of the PWFA, even if the reasonable accommodation is eventually provided.

Furthermore, it is important for employers to know that the EEOC will be accepting charges under the PWFA from the effective date of the statute. In other words: employers must ensure compliance with the provisions of the PWFA to avoid EEOC charges and any other liability under the statute. The procedures for filing a claim under the PWFA, as well as the available remedies (i.e. injunctive relief, back and front pay, damages, compensatory or punitive damages) are the same as under Title VII, the Congressional Accountability Act, the Government Employee Rights Act, and section 717 of Title VII, for the employees covered by their respective statutes. Limitations regarding available remedies under these statutes likewise apply under the PWFA. As with the ADA, damages are limited if the claim involves the provision of a reasonable accommodation, and the employer makes a good faith effort to meet the need for a reasonable accommodation.

If you have any questions or comments regarding these recent developments that impact the employment landscape or if you’d like assistance to revise or modify your practices and policies to ensure compliance with local legislation, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience: