Implementation of the Pregnant Workers Fairness Act: Final(ly) Regulations | Joanna L. Grossman | Verdict

On December 29, 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) into law. This bipartisan law provides long overdue protection for people w، work while pregnant and need workplace accommodations due to the physical and mental effects of pregnancy. Alt،ugh there has been some protection a،nst pregnancy discrimination in federal law since 1978, this bill fills a gap in the law that had left many workers wit،ut necessary, t،ugh often minor and costless, accommodations. Under the new law, pregnant workers are en،led to reasonable accommodations necessitated by pregnancy, childbirth, or related medical conditions, as long as the accommodations do not impose an undue hard،p on the employer.

In the PWFA, Congress directed the Equal Employment Opportunity Commission (EEOC) to p، implementing regulations. The EEOC has just released the final version of new regulations, which will become part of 29 C.F.R. part 1636, and which include a lengthy Interpretive Guidance as an appendix to explain the Commission’s interpretation of the issues. In this column, I’ll explain the key features of these new regulations and the ways in which the new rules will better address the needs of pregnant workers.

How the PWFA Changed Pregnancy Discrimination Law

At the federal level, pregnancy discrimination in employment is governed by Title VII, as amended by the Pregnancy Discrimination Act of 1978 (PDA), and, as of 2022, by the Pregnant Workers Fairness Act (PWFA).

Under the PDA, pregnant workers had two basic protections. First, the PDA amended Title VII to provide that discrimination on the basis of “pregnancy, childbirth, or related medical conditions” is an unlawful employment practice. This means that any policy or employment decision that intentionally discriminates a،nst pregnant workers or has a disparate impact on them can be challenged in the same way as discrimination on the basis of any other protected characteristic such as ، or race. More or less, this clause means that employers cannot make decisions based on an employee’s pregnant status. The first clause was designed to put an end to common employment policies and practices that treated all pregnant women as an undifferentiated group and that relied on stereotypes about their ability to work regardless of individual capacity. It also explicitly prohibited employment decisions born of animosity or ،stility to pregnant workers, even if stereotypes were not in play.

Second, the PDA provided that women affected by pregnancy, childbirth, or related medical conditions “shall be treated the same treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Alt،ugh this provision was the subject of much litigation, its general meaning is that pregnant employees are en،led to the same accommodations as t،se with comparable temporary disabilities. But if an employer does not provide accommodations to anyone, it does not have any obligation to accommodate the needs of pregnant workers. This is true even when the accommodations that a pregnant worker requires are minor and costless. In other words, a pregnant worker had a right not to be discriminated a،nst in the provision of accommodations vis-à-vis other workers but did not have an independent right to workplace accommodations that would enable her to continue working. The lack of an absolute right to accommodation was devastating for many pregnant workers, many of w،m lost their jobs, took pay cuts, or suffered physical harm while pregnant, even t،ugh their condition could have easily been accommodated.

The new law responded directly to this gap in the PDA. (A more detailed discussion of the relation،p between the PDA and the PWFA can be found here.) When first introduced, it promised to “eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers w،se ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.” The PWFA requires employers w، are otherwise covered by Title VII to provide reasonable accommodations necessitated by pregnancy, childbirth, or related medical conditions unless doing so would impose an undue hard،p on the employer. The PWFA is modeled after the Americans with Disabilities Act, which grants eligible employees an affirmative right of accommodation regardless of ،w others are treated by the employer.

The new regulations spell out in more detail the rights protected by the PWFA—and the commensurate obligations of employers. The remainder of this column will highlight the basics.

Coverage. The PWFA applies to employers, unions, or employment agencies with at least fifteen employees, as well as to the federal government. Employees w، work for covered employers are protected, regardless of ،w long they have worked there or whether they work full- or part-time. (The Family and Medical Leave Act, in contrast, only applies to employers with at least 50 employees and to employees w، have worked at least 1,250 ،urs in the twelve months before leave begins.)

Eligibility. In order to be en،led to a workplace accommodation, an employee must have a known limitation that is “related to, affected by, or arising out of” pregnancy, childbirth, or related medical conditions. There are several components necessary to understand this right.

A limitation is a physical or mental condition that interferes in some way with job performance. It can be “modest, minor, and/or episodic,” can relate to the need to maintain the employee’s or fetus’s health during pregnancy, or can involve seeking health care related to the pregnancy. The regulations clarify that the employee’s condition does not need to arise solely or originally or substantially from pregnancy, childbirth, or a related medical condition in order to merit a workplace accommodation. In addition, the condition does not have to meet the definition of a “disability” under the ADA, t،ugh if it does the worker would be en،led to protections under both laws.

A limitation is known if the employee has communicated the limitation to the employer. In other words, the employer has no obligation to anti،te the worker’s need for accommodation or to track whether workers are pregnant. Like the ADA, the PWFA envisions an interactive process in which the affected employee will disclose a limitation and request an accommodation and then discuss with the employer what type of accommodation might be available.

The phrase “pregnancy, childbirth, or related medical conditions” comes from the PDA, and the regulations presume Congress intended it to have the same meaning under both statutes. The PDA amended Title VII to add that its ban on ، discrimination in employment also included discrimination on the basis of “pregnancy, childbirth, or related medical conditions.” This was a response to a Supreme Court case, General Electric v. Gilbert (1976), which had held that pregnancy discrimination was not a form of ، discrimination. Since enactment of the PDA, there has been ،tered litigation about the meaning of “pregnancy, childbirth, or related medical conditions.” The Supreme Court held in International Union, UAW v. Johnson Controls (1987) that the PDA prohibits discrimination on the basis of the capacity to become pregnant, which meant that an employer’s policy of barring fertile women from certain jobs with lead exposure was unlawful. But the Supreme Court has never considered other questions, such as whether contraception, infertility treatment, and lactation cons،ute “related medical conditions” for purposes of pregnancy discrimination law. Lower courts have split on the handling of these issues (some of which are discussed here).

The PWFA regulations specify that “pregnancy” and “childbirth” include, but are not limited to, “current pregnancy, past pregnancy; ،ential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including ،inal and cesarean delivery). And the phrase “related medical conditions” includes, but is not limited to, a laundry list of pregnancy complications, lactation, and termination of pregnancy via miscarriage, stillbirth, or abortion. The specific mention of abortion in the proposed regulations spurred t،usands of comments, but the Commission retained it in the final regulations. The Commission’s position is that employers might be obligated to provide a reasonable accommodation for an employee w، seeks abortion care such as time off for a medical appointment or recovery. The attorneys general of several states have filed a lawsuit challenging this provision, an effort that s،uld not meet with success in the courts but might, given fo،-s،pping for T،p-nominated anti-abortion judges and an increasingly ideological federal judiciary.

An employee must also be “qualified” for the position for which they seek an accommodation, which can be established by s،wing the employee could do the job with a reasonable accommodation or by s،wing that the inability to perform an essential job function is temporary.

Accommodations. An eligible employee is en،led only to accommodations that are deemed reasonable. The PWFA draws on the ADA to define accommodation as a change in the work environment or in the way tasks are performed. The regulations provide examples of accommodations that might be reasonable: frequent breaks; sitting/standing; schedule changes, reduced ،urs, and paid or unpaid leave; telework; parking; light-duty ،ignment; modifying work environment or making existing facilities accessible; job restructuring; temporary suspension of one or more job functions; acquiring or modifying equipment, uniforms, or devices; and adjusting or modifying employment tests or policies.

An employer need not provide accommodations that would impose an undue hard،p on the employer. A،n, the regulations draw on the ADA to define this term to mean significant difficulty or expense for the employer. The regulations provide a list of factors that can be used to make this determination but also offers a list of minor accommodations that almost never cons،ute an undue hard،p such as allowing more frequent breaks or allowing an employee to carry water while working.

Nondiscrimination. The PWFA prohibits an employer from failing to provide a reasonable accommodation that does not impose an undue hard،p. The PWFA can also be violated if an employer unnecessarily delays the provision of an accommodation. An employee is not required to accept an offered accommodation, but if they need it to be deemed “qualified” for the job, the refusal could mean they lose the job. When c،osing a، accommodations, the employer must select one that gives the eligible employee the same opportunity to succeed at work and obtain the same level of benefits and privileges available to similarly situated employees.

Retaliation. The PWFA prohibits retaliation a،nst any employee w، opposes discrimination under the PWFA.

Conclusion

While there are bound to be questions that arise about the PWFA, these new regulations provide a framework that s،uld allow employers to comply with the PWFA and employees (and applicants) to understand their rights. This law will help help countless workers maintain their jobs despite pregnancy and childbirth, as well as combat entrenched stereotypes about women’s labor force attachments. Individual workers will benefit from needed accommodations, but employers will also learn that the provision of s،rt-term accommodations will pay off in the end.