By Karla Grossenbacher

Seyfarth Synopsis: The Pregnant Workers Fairness Act (“PWFA”) creates new rights to reasonable accommodation for employees and applicants who have physical or mental conditions arising from pregnancy, childbirth or related medical conditions. 

Currently, existing law provides only for limited accommodation rights to employees based on pregnancy/potential intended pregnancy, childbirth, etc.  The PWFA expands accommodation rights for pregnant individuals to be more in line with — and in some respects, more expansive than — those provided to qualified individuals with disabilities under the Americans with Disabilities Act (ADA). 

The PWFA applies to employers with 15 or more employees and requires covered employers to provide reasonable accommodation to employees and applicants if needed because of pregnancy, childbirth, and related conditions unless it causes an undue hardship.  In this regard, the PWFA is materially different than the Pregnancy Discrimination Act (PDA), which solely prohibits discrimination on the basis of pregnancy (current or past), potential or intended pregnancy, childbirth, and medical conditions related to pregnancy or childbirth.  Under the PDA, employers cannot refuse to provide accommodations to employees based solely on pregnancy, potential/intended pregnancy, childbirth, etc. if the same accommodations are provided to other employees who are similar in their ability (or inability) to work.  In other words, the PDA is a law that protects against disparate treatment.  With the PWFA’s new right to reasonable accommodation for those with physical or mental conditions arising from pregnancy, childbirth or related medical conditions, such individuals will not have to show under the PWFA that a non-pregnant employee received the requested accommodation as they do under the PDA; such individuals simply have to show that they are covered under the PWFA and that they require a reasonable accommodation due to a physical or mental condition related to pregnancy/childbirth or a related condition.

The PDA is largely modeled on the ADA.  Because of this, the PWFA uses terminology borrowed from the ADA, such as “reasonable accommodation,” “interactive discussion,” and “undue hardship” and these terms have the same meaning given to them in the ADA.  Nonetheless, there are some significant differences between the two laws. 

For example, under the ADA, an individual may request a reasonable accommodation if needed because of a “disability,” which is defined under the ADA as a physical or mental impairment that substantially limits a major life activity/major bodily function, or a record of a substantially limiting impairment.  Although it is possible under the ADA to have a pregnancy-related disability (e.g., gestational diabetes), pregnancy itself is not a disability under the ADA.  Under the PWFA, a qualified individual is entitled to reasonable accommodation if the individual has a “known limitation,” which is a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” that are communicated to the employer by either the employee or the employee’s representative.  Importantly, an individual does not have to show that the physical or mental condition (e.g., morning sickness, swelling in the feet, sore back) substantially limits a major life activity, which is part of the definition of a disability under the ADA.  This is an ADA requirement for coverage, not a requirement for PWFA coverage. 

Another important distinction between the PWFA and the ADA is how the respective statutes define the term “qualified individual.”  Under the ADA, a qualified individual is one who, with or without reasonable accommodation, can perform the essential functions of their position.  However, under the PWFA, an individual is still considered “qualified” even if the individual is unable to perform an essential function is for a “temporary period” as long as it could be performed “in the near future” and as long as the inability to perform essential function can be “reasonably accommodated.”  (These terms are undefined in the PWFA itself, but will presumably addressed in the forthcoming regulations.)

In terms of express prohibitions on employers, the PWFA makes it an unlawful employment action for an employer to do any of the following with respect to a qualified individuals seeking reasonable accommodation under the statute:

  • fail to provide a reasonable accommodation unless it would cause an undue hardship;
  • require a qualified individual to accept accommodation other than one arrived at through the interactive process;

–    deny employment opportunities to a qualified individual if the denial is based on a need to provide reasonable accommodation;

–    require a qualified individual to take leave (paid or unpaid) if another reasonable accommodation can meet the individual’s needs; and

–    take an adverse action against a qualified individual with respect to the terms, conditions and/or privileges of employment because the individual requested or received a reasonable accommodation.

The PWFA also prohibits retaliation against or coercion, intimidation, threats, or interference with an individual exercising or enjoying rights under the PWFA. 

Aggrieved individuals have the right to seek redress under the same general procedure and framework provided under Title VII (i.e., exhaust administrative remedies and then file a suit for damages).  Like the ADA, the PWFA has a provision that provides damages may not be awarded if covered entity demonstrates good faith efforts, in consultation with the individual who needed reasonable accommodation, to identify and make a reasonable accommodation that would provide individual with an equally effective opportunity and would not cause an undue hardship.  The purpose of this provision is to encourage employers to engage in an interactive process while also recognizing that sometimes a reasonable accommodation chosen through a good faith interactive process might still end up not being effective.  In that situation, the PWFA does not allow for damages to be assessed against the employer.

Employers should take steps immediately to comply with the PWFA.  Even though final regulations will not be issued under the PWFA until December 29, 2023, the law will be in effect as of June 27, 2023.  Accordingly, employers should consider taking the following compliance steps to prepare for compliance with the PWFA:

  • provide training to all supervisors/managers who will have a role in the reasonable accommodation process including receiving or handling accommodation requests under the PWFA;
  • update reasonable accommodation policies to include the right to reasonable accommodation for physical and mental limitations arising out of pregnancy, childbirth or related medical conditions; and
  • create a new form that is separate from the forms used generally for ADA accommodations in the workplace that employees can use to request an accommodation under PWFA. 

Please contact your Seyfarth relationship attorney or the author of this blog for assistance.