THE PREGNANT WORKERS FAIRNESS ACT
IMPLEMENTING THE FINAL RULE
PART ONE
As discussed in our introduction to this new federal law, the Pregnant Workers Fairness Act (PWFA) was passed to ensure that pregnant employees and applicants were provided with the right to receive reasonable accommodations in the normal course of employment.
This final rule was published in the Federal Register on April 19, 2024 with an effective date of June 18, 2024 and implements the law in its fullness. We’ll be discussing the major legal points over 3 Pro Talks.
The essence of the law requires employers of 15 or more employees to provide reasonable accommodations to employees and applicants for known limitations related to pregnancy, childbirth, or related medical conditions unless doing so would result in an “undue hardship” for the employer.
Further, the law prohibits discrimination or retaliation towards an applicant, employee or former employee who has or has attempted to exercise their rights under the PWFA.
The final rule leans on concepts found in the Americans With Disabilities Act ( ADA ) with which most employers are already familiar.
The more common terms include “undue hardship,” “interactive process,” and “essential functions”. However, there are some differences between the ADA and the PWFA including:
(1) an alternative definition of “qualified” under the PWFA but not under the ADA
(2) a potential suspension of essential functions under the PWFA but not under the ADA
(3) the types of related medical conditions qualifying under the PWFA but not under the ADA
and (4)….. limitations on an employer’s right to request documentation.
We’re going to cover each of those distinctions in turn.
First, the PWFA has two definitions of the term “qualified.”
Similar to the ADA, an employee is “qualified,” if she can perform the essential functions of her job, with or without reasonable accommodation. And remember, under the final rule, the term “employee” also includes job applicants as well. This is the same definition as “qualified” under the ADA. The PWFA incorporates a second definition of “qualified,” which represents a departure from the ADA in that an employee may be qualified-despite the inability to perform one or more essential functions. If the inability is temporary, the employee could perform the essential functions in the “near future,” and the inability to perform can be reasonably accommodated, the employee could be “qualified.”
The final rule defines “temporary” as lasting for a limited time, not permanent, and may extend beyond “in the near future.”
“In the near future,” is defined as generally 40 weeks and does not mean that the essential functions must always be suspended for forty weeks or if an employee seeks the suspension, it must be automatically granted.
So, the second major difference between the PWFA and the ADA is that employers may be obligated to temporarily suspend an essential job function so long as that would be a “reasonable accommodation” and not create an “undue hardship” under the specific factual circumstances.
The third difference is that individuals covered by the PWFA are not required to have a disability to obtain an accommodation. You should bear in mind that an employee may have a pregnancy-related medical condition that meets the definition of “disability” but a limitation under the PWFA does not have to meet that definition. Under the PWFA, limitations are covered as long as they arise out of, are related to, or affected by “pregnancy, childbirth or related medical conditions.”
The final rule has a long, non-exhaustive list of circumstances or conditions that meet the definition including: pregnancy, past pregnancy, and prospective pregnancy, which would encompass issues such as menstruation, fertility treatments, endometriosis, the use of contraception, postpartum depression, antenatal anxiety, lactation, and termination of pregnancy, such as miscarriage, stillbirth, or abortion. And regarding abortion, note that the final rule does not require an employer to pay for abortions or the costs of transportation to obtain an abortion.
As you’ll recognize, the PWFA will apply to a significantly broader employee population than those employees who we would traditionally think of as being “pregnant” and a much broader group of conditions, described as limitations, than what we have been trained to think of as a “disability” under the ADA.
The fourth significant difference between the ADA and the PWFA is a series of limitations on what employers can request from employees seeking accommodation and we’ll be covering this in our next Pro Talk.
Until next time, this is Russ Moen for Express Pro Talks.