New Legal Requirements for Pregnant Workers Effective on June 27: Is Your Campus Ready?

Today is the effective date of the new federal Pregnant Workers Fairness Act of 2022 (PWFA), which greatly expands the obligations of educational entities and other employers to accommodate the needs of pregnant and postpartum workers. Congress enacted the PWFA to fill in certain gaps in the Pregnancy Discrimination Act, which, despite its name, does not affirmatively require workplace accommodations. The PWFA applies to private and public sector employers with at least 15 employees and applies to all employees and applicants for employment. The law exempts certain religious organizations.

Employees and applicants may now file EEOC charges against employers who fail to comply with the new law. Like the Pregnancy Discrimination Act, an employee may sue for money damages but first must exhaust administrative remedies through the EEOC before filing suit. The EEOC has until December 2023 to issue regulations, but one of the law’s original sponsors, Senator Bill Cassidy, sent a letter on June 8 urging the EEOC to move more quickly on this important new law.

What Does the PWFA Require?

Employers must provide “reasonable accommodations” for the “known limitations related to the pregnancy, childbirth, or related medical conditions” unless the accommodation would impose an “undue hardship” on the operation of the employer’s business. The PWFA borrows the term “reasonable accommodation” from the Americans with Disabilities Act, 42 U.S.C. §12111(9), along with the now familiar “interactive process” that will typically be used to determine appropriate accommodations.

But the PWFA is broader than the ADA. Unlike the ADA, which applies only to disabilities, the PWFA’s “reasonable accommodation” requirement applies even if the employee’s condition or limitation does not rise to the level of a disability. It applies to any “physical or mental condition” that is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” The normal or routine complications of pregnancy—which typically do not constitute a “disability” under the ADA—do receive protection under the PWFA. In addition, the PWFA applies to more than just pregnancy but includes postpartum conditions and events such as miscarriage, stillbirth, and termination of pregnancy. As noted by a recent report from the Congressional Research Service, the term “related” condition previously has been interpreted by some courts to include abortion.

As with the ADA, the employee need not use any magic words to invoke the interactive process. A simple request for more restroom breaks due to pregnancy will be sufficient to put a supervisor on notice. Supervisors need immediate training to ensure that human resources is timely involved, that any medical inquiries are lawful, and that appropriate documentation is maintained. Whether a requested accommodation is reasonable will be job specific and based on the constellation of facts and circumstances, including the employer’s resources and whether particular options are effective in accommodating the employee.

What If an Employee Cannot Perform an Essential Job Function Because of the Pregnancy or Pregnancy-Related Condition?

In another important departure from the ADA, the PWFA requires accommodations even if the employee cannot perform an essential job function. The law identifies three questions that will determine if the school or college must temporarily set aside an essential function of the job:

• Is the employee unable to perform an essential job function “for a temporary period”?
• Will the employee be able to perform the essential function “in the near future”? and
• Can the employer reasonably accommodate “the inability to perform the essential function” without “undue hardship”?

If the answer to all three questions is “yes,” the employer must temporarily set aside the essential job function. If the answer to any of the questions is “no,” the employer is not required to temporarily set aside the essential job function. Additional guidance from the EEOC will aid employers in complying with this new standard.

What Is an Undue Hardship?

“Undue hardship” is interpreted the same way it is interpreted under the ADA. Generally, it means that the requested accommodation would impose significant difficulty or expense on the employer.

Under the ADA, 42 U.S.C. §12111(10), “undue hardship” is an “action requiring significant difficulty or expense, when considered in light of the factors” set forth in the statute. These factors include, among others, the nature and cost of the accommodation needed, the impact of the accommodation on the operation of the business, the overall financial resources and size of the employer, and the type of operations of the employer. The EEOC has published general guidance documents on undue hardship under the ADA, but the forthcoming regulations under the PWFA are expected to provide more precise guidance.

What Is Involved in the Interactive Process?

The employer and employee will discuss options that would permit the employee to continue working. The employer may request medical documentation if needed to understand the condition and to assist in tailoring an effective accommodation. For privacy reasons, the affected employee may desire to work directly with human resources rather than a front-line supervisor, especially when sharing medical documentation.

An employer cannot require the employee to accept an accommodation except one “arrived at through the interactive process.” In addition, an employer cannot compel an employee to take involuntary leave, even if that leave is paid. Under the Pregnancy Discrimination Act, forced leave was a common occurrence when the pregnant employee was no longer able to perform all the essential duties of her job. An employer also cannot compel an employee to take a reduced schedule if another accommodation is available.

What Are Common Accommodations for Pregnancy and Pregnancy-Related Conditions?

The law directs the EEOC to include examples of accommodations in its forthcoming regulations. Until those regulations are published, employers may consider examples provided by theHouse Committee on Education and Labor Report on the PWFA. Potential examples include the following but ultimately will be based on the employee’s individual circumstances:

• Physical well-being: flexible or longer breaks to drink water, eat, rest, or use the restroom; sitting instead of standing; standing instead of sitting.
• Proximity and access: different workstations, closer parking spaces, access to an elevator.
• Equipment: a stool or chair to sit on, a rolling cart to carry things, a different desk, a larger uniform, adding a lock to a room to create a lactation space.
• Modification of duties: no climbing ladders, no heavy lifting, no late-night driving, no strenuous activity, or no exposure to dangerous chemicals.
• Adjustment of workplace rules: allowing eating or drinking when otherwise prohibited; allowing remote attendance at a meeting, such as via Zoom or MS Teams.
• Modification of schedule: later start time, longer lunch break, limit on hours worked per day, time off for prenatal appointments, stop the tenure clock.
• Reassignment, temporary transfer, or telework.

What Is Prohibited by the PWFA?

The PWFA does not replace the Pregnancy Discrimination Act. Traditional pregnancy discrimination claims—failure to hire or promote, discriminatory discharge, harassment, and disparate impact claims—will still be brought under the Pregnancy Discrimination Act, not the PWFA.

There are, however, specific prohibitions contained in the PWFA. An employer cannot deny employment opportunities to employees to avoid having to make reasonable accommodations. Employers are also prohibited from taking adverse action against an employee because the employee requested or used a reasonable accommodation. And an employer cannot require an employee to take paid or unpaid leave if another reasonable accommodation can be provided.

As with other federal anti-discrimination statutes, the PWFA also prohibits retaliation. In addition, the PWFA provides that it is “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of such individual having exercised or enjoyed, or on account of such individual having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected” by the PWFA.

What is the Relationship Between the PWFA, the Family Medical Leave Act, and Other Related Federal Laws?

Employers may have overlapping obligations under the PWFA and other federal statutes, including the Family Medical Leave Act, the ADA, and the PUMP Act. For example, an employee might have accommodation rights under the PWFA even if the individual’s FMLA or PUMP Act rights have expired or even if the employee is new and not yet eligible for leave under the FMLA. Employers will need to evaluate the requirements of all applicable state and federal laws when processing employee requests.

What Should Employers Do to Ensure Compliance with the PWFA?

Here is a checklist of recommended action items for complying with the new law:

• Determine which officials or personnel will have compliance and oversight responsibilities.
• Review and update your employment policies and procedures. Tailor policies and forms to pregnancy and parenting issues—do not rely on standard disability forms. Not all PWFA accommodation requests will relate to a disability. In addition, unlike the ADA, you may be required to temporarily excuse an essential job function.
• Review and update employee, department-level, and campus-level handbooks to address the requirements and prohibitions of the PWFA and to include information regarding reasonable accommodations and the interactive process.
• Create web-based resources and other materials for employees and supervisors to understand rights and obligations under the PWFA.
• Develop forms and resources on pregnancy-related conditions and accommodations to enhance and expedite the interactive process.
• Train personnel—HR personnel and department or campus level supervisors and administrators who will receive and respond to requests for accommodations.

What Other New Laws Address Pregnancy Discrimination and Accommodation in Schools?

In addition to the new PWFA, schools and colleges must comply with the new federal PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act), which expands the rights and remedies for nursing workers who need to pump while at work. Our update on the PUMP Act is available here. In addition, on June 23, 2022, the U.S. Department of Education released a proposed Title IX rule that, if adopted, would increase legal protections for students and employees who have “current, potential, or past pregnancy or related conditions,” including breastfeeding. The new Title IX rule will not be finalized until October 2023, at the earliest. Finally, always check your state laws for additional requirements.

Additional Resources Regarding the PWFA

The EEOC will issue proposed rules regarding the PWFA for public comment. Until then, the EEOC has posted informal guidance for all covered employers, “What You Should Know About the Pregnant Workers Fairness Act”, a one-page PWFA “infographic”, and a one-page PWFA “healthcare poster.”