Yes, the Pregnant Workers Fairness Act is a big deal!

What the Pregnant Workers’ Fairness Act (PWFA) means for your employees

Employers need to take note! The recently enacted federal Pregnant Workers Fairness Act (PWFA)  takes effect on June 27, 2023. The PWFA is watershed legislation that creates nationwide rights for pregnant employees and applicants who need reasonable accommodations because of medical conditions related to pregnancy, childbirth or related conditions and applies to U.S. employers with 15 or more employees.  

Gaps in other federal laws 

The PWFA is intended to – and does – fill a huge gap in the previously existing federal laws with regard to the rights of pregnant workers.  Before the PWFA, pregnant employees had no clear legal right under federal law to accommodations due to medical issues related to their pregnancy. 

• Pregnancy Discrimination Act.  The United States Supreme Court (SCOTUS) ruled in the case of Young v. U.P.S. that the Pregnancy Discrimination Act does not impose an affirmative obligation to accommodate pregnant women.  Employers could accommodate, for example, workers with work-related injuries but not pregnant employees if they could show that the policy did not create an unfair burden on pregnant employees. SCOTUS’ view was recently embraced by the 7^th Circuit Court of Appeals, which concluded that Walmart did not violate the Pregnancy Discrimination Act when it offered “light duty” accommodations to those injured on the job but not to pregnant employees.
• Americans with Disabilities Act.  Under the Americans with Disabilities Act, a so-called “routine” pregnancy is not a disability. Further, even a pregnancy with complications does not necessarily rise to the level of a disability requiring accommodations. In November 2022, the 11^th Circuit Court of Appeals recently ruled that under the ADA a pregnancy certified by the health care provider as being with “complications” that resulted in two blood transfusions was, nevertheless, not a disability under the ADA entitling an employee to an accommodation. The Court reasoned that the health care provider had not certified whether or how the complications, including the blood transfusions, interfered with a major life activity. 
• Family and Medical Leave Act. The FMLA is supportive of the rights of pregnant workers, but only within its boundaries. Under the FMLA pregnancy is a serious health condition thereby entitling eligible pregnant employees to leave. However, the FMLA is a leave law only. It does not mandate any workplace accommodations. In addition, the FMLA’s eligibility requirements mean that there are many pregnant employees who are not protected because they (1) have not worked at the employer long enough, (2) have not worked enough hours within the past 12 months to qualify, (3) do not work at a site with 50 or employer employees within 75 miles or, (4) have exhausted their annual FMLA leave allotment.

What the PWFA does

Under the PWFA, employers with 15 or more employees must provide reasonable accommodations for the “known limitations” of “qualified” employees and applicants related to pregnancy, childbirth, or related medical conditions unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s business. 

• “Known limitations” is a defined term in the PWFA and means a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions that the employee or the employee’s representative has communicated to employer whether or not such condition meets the definition of disability specified in section 3 of the ADA.”   
• “Qualified employee” is defined as an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if:

1. Any inability to perform an essential function is for a temporary period; and
2. The essential function could be performed in the near future; and
3. The inability to perform the essential function can be reasonably accommodated. 

The PWFA also imposes additional obligations that make the PWFA a more prescriptive law for employers than the ADA, including that employers:

• May not require a qualified employee affected by pregnancy, childbirth or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process.
• May not require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to pregnancy, childbirth or related medical conditions.
• Must permit an accommodation that relieves an employee of performing an essential job function if the requested accommodation is temporary.

Employers need to bear in mind that an accommodation can include a variety of types of accommodations, including but not limited to job restructuring, light duty, reassignment, equipment modification, telework, and leave.  Like the ADA (and unlike the FMLA), the law does not expressly state that an employee has “job protection” under the law.  However, job protection can be reasonably inferred from the mandatory directive to provide an accommodation and the antiretaliation provisions of the law. 

Further, like the ADA (and unlike the FMLA), employees have the right to an accommodation regardless of their length of service and, indeed, the law’s protections extend to applicants.

What’s next for employers?

We will learn more about the PWFA in the coming months.  The Equal Employment Opportunity Commission (EEOC) has been tasked with issuing regulations for the PWFA.  We expect that these regulations may clarify certain issues under the PWFA.

For example, employers have been asking what constitutes a pregnancy-related medical condition.   Does it, for example, include conditions such as post-partum depression, treatment for infertility and incapacity or limitations caused by miscarriage, stillbirth, or other termination of a pregnancy.  It is also not clear whether employers can request medical documentation and, if so, in what circumstances.  Some of the state and local pregnancy accommodation laws prohibit employers from requesting medical documentation for certain common pregnancy-related accommodations, including frequent rest breaks, needing a stool or other place to sit, and lifting restrictions. 

What Sun Life is doing

Sun Life’s Accommodation products have always helped employers with legal obligations to accommodate employees on account of pregnancy, childbirth, and related medical conditions whether under federal, state, or local law.  Our Accommodation Consultants are trained to provide compliance guidance on these laws with the support of our in-house legal staff.  Clients and prospective employers who choose Sun Life for Absence Management and ADA accommodations have been notified that we will support accommodation obligations under the PWFA.  Going forward, members will start to see references to our previously-named ADA Accommodation products as being “Health Accommodations” products to be more inclusive of the range of accommodation laws we support, including the ADA/ADAAA, the PWFA, and state and local pregnancy accommodation laws. Employers will be provided with the choice of two levels of service: (1) Accommodation Services and (2) Accommodations Consulting.

In addition, we will keep employers up to date and informed about how the EEOC and the courts are interpreting the PWFA and whether it is impacting how courts handle lawsuits alleging failure to accommodate under the ADA.

In all states except New York, group insurance policies are underwritten by Sun Life Assurance Company of Canada (Wellesley Hills, MA). In New York, group insurance policies are underwritten by Sun Life and Health Insurance Company (U.S.) (Lansing, MI).

AMSSM-1313                                                                                                                     SLPC 32162 5/23 (Exp 5/25)