Since the Pregnant Workers Fairness Act took effect in June 2023, there’s been a huge spike in lawsuits against employers alleging failure to reasonably accommodate workers covered by the landmark legislation.
In the first 11 months following enactment of the law, the Equal Employment Opportunity Commission received 1,869 complaints from workers who allege their employer failed to provide them with reasonable accommodation under the PWFA, according to an article in Business Insurance, a trade publication.
As a result, the EEOC has taken action and between Sept. 10 and Oct. 11, 2024 it initiated four federal lawsuits against companies over alleged violations of the law.
The recent activity should be a wake-up call to employers to put as much effort into complying with this new law as they do the Americans with Disabilities Act, which is similar to the PWFA in that it requires employers to initiate an interactive process with a worker who seeks reasonable accommodations under the act.
The law
Essentially, the PWFA requires employers to make reasonable accommodation for workers covered by the act if they request it, particularly if they are temporarily unable to perform one or more essential functions of their job due to issues related to their pregnancy or recent childbirth.
Reasonable is defined as not creating an “undue hardship” on the employer. Temporary is defined as lasting for a limited time, and a condition that may extend beyond “the near future.” With most pregnancies lasting 40 weeks, that time frame would be considered the near future.
What‘s required
The law requires employers, absent undue hardship, to accommodate job applicants’ and employees’ “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”
The condition does not need to meet the ADA’s definition of disability and the condition can be temporary, “modest, minor and/or episodic.”
The PWFA covers a wide range of issues beyond just a current pregnancy, including:
- Past and potential pregnancies,
- Lactation,
- Contraception use,
- Menstruation,
- Infertility and fertility treatment,
- Miscarriage,
- Stillbirth, and
- Abortion.
What’s a ‘reasonable accommodation‘
The law’s definition of reasonable accommodation is similar to that of the ADA. The regulation lays out four “predictable assessments,” which would not be an undue hardship in “virtually all cases.” These would allow an employee to:
- Carry or keep water nearby and drink, as needed;
- Take additional restroom breaks, as needed;
- Sit if the work requires standing, or stand if it requires sitting, as needed; and
- Take breaks to eat and drink, as needed.
The takeaway
The PWFA poses a significant employment liability risk for employers since it’s a new law and supervisors and managers may not be aware of it.
Employers will need to ensure that they properly handle and respond to accommodation requests under the PWFA.
To ensure compliance, you should ensure that personnel who are responsible for handling accommodation requests under the ADA are also trained in how to respond to requests under the PWFA.
As well, you should ensure that you have in place a robust employment practices liability insurance policy that may help cover the costs of any lawsuits filed under the act.
Insurance companies that underwrite these policies may also ask targeted questions in applications forms on how a business handles PWFA accommodation requests and whether the responsible employees have been trained in its application.
Companies that don’t have policies in place may instead get a policy that contains an exclusion for PWFA accommodation claims.