The Pregnant Workers Fairness Act (PWFA) has been in effect for just over 16 months. The regulations promulgated for the rules have been in effect for barely four months. So, it is notable that the Equal Employment Opportunity Commission (EEOC) has already filed numerous public lawsuits seeking redress for claimed violations of the law.
Under the PWFA, workers who are pregnant or have pregnancy-related conditions can seek an accommodation, but the law differs from the other law, the Americans with Disabilities Act (ADA), that provides for accommodations in some very important respects. The cases filed are informative as to how the PWFA and the ADA differ and offer employers some guidance on how to comply with the law.
First, the PWFA is unlike the ADA because under the PWFA, employers are limited in the amount of documentation they can seek in response to a request for accommodation. The final PWFA rules make clear that an employer should not seek medical documentation from an employee seeking pregnancy accommodation, except where it is “reasonable” to do so. Accommodations that stem from an “obvious” need should not be met with the request for medical information. The rules provide guidance as to what obvious requests might be and include more frequent breaks, remote work, a modified work environment, and schedule changes, to name a few.
Another important difference for an employer to remember when considering accommodations under the PWFA is that the accommodations requested are necessarily temporary. Because of the temporary nature of an accommodation request, the analysis of undue hardship is different from that of the ADA, where the accommodation is long term, over the duration of the employment. This is why a temporary reassignment or the temporary elimination of an essential function of a job can be reasonable accommodations under the PWFA, but not necessarily under the ADA.
What is clear is that the EEOC is interpreting the PWFA very broadly and that the EEOC is taking enforcement of this new law very seriously. These first lawsuits provide employers parameters to work from. Placing an employee on involuntary, unpaid leave; requesting documentation for a request not to work on one’s stomach; requesting more frequent breaks; or requesting lactation accommodation are just some of the allegations in these first lawsuits. Remember that temporary unpaid leave is considered a last resort under the PWFA.
Consulting and Enterprise members can contact an Employers Council attorney with questions about complying with the PWFA and related laws. All members can access our whitepaper on the topic.
Heather Hancz is an attorney for Employers Council.