April 26, 2024 | Category: Uncategorized

The Pregnant Workers’ Fairness Act (PWFA) is a federal law, which requires employers with 15 or more employees to provide reasonable accommodations for job applicants and employees with known limitations related to pregnancy, childbirth, and related medical conditions, unless doing so would cause an undue hardship. This law went into effect June 27, 2023. However, the final regulations to carry out the law go into effect on June 18, 2024.

The PWFA only addresses accommodations related to pregnancy, childbirth, or related medical conditions. Other laws, including Title VII of the Civil Rights Act (Title VII), Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), provide protections for employees and applicants on the basis of pregnancy, childbirth, and related medical conditions.

Additionally, the PWFA does not replace any federal, state, or local laws that provide more protections to employees and applicants for employment due to pregnancy, childbirth, and related medical conditions. Nevada and more than 30 other U.S. states provide employment protections against pregnancy discrimination and/or provisions for pregnancy accommodation.

Reasonable Accommodation under PWFA

Generally, reasonable accommodations are changes to the work environment or how things are normally done to help qualified employees with pregnancy-related limitations perform the job. For purposes of PWFA, reasonable accommodation includes:

  • Modifications or adjustments to a job application process that enables a qualified applicant with a known limitation to be considered for a position
  • Modifications or adjustments to the work environment, or the manner or circumstances under which the position is customarily performed that enables a qualified employee with a known limitation to perform the essential functions of that position
  • Modifications or adjustments that enable an employee with a known limitation to enjoy equal benefits and privileges of employment as are enjoyed by other employees
  • Temporary suspension of essentials functions and/or modifications or adjustments that permit the temporary suspension of essential functions

Some examples of reasonable accommodations outlined by the final rule include:

  • Additional, longer, or more flexible breaks to drink water, eat, rest or use the restroom
  • Changing food or drink policies to allow of a water bottle or food
  • Changing equipment, devices, or workstations (such as providing a stool to sit on or a way to do work while standing)
  • Changing a uniform or dress code, or providing safety equipment that fits
  • Changing a work schedule, including having shorter hours, part-time work, or a later start time
  • Telework
  • Temporary reassignment
  • Leave for health care appointments
  • Light duty or help with lifting or other manual labor
  • Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth

It’s important to note that different accommodations may be needed as different times during pregnancy or after childbirth, so employers should look at accommodation for pregnant workers as an ongoing assessment and not just a one time or one size fits all determination.

Pregnancy, Childbirth, or Related Medical Conditions

The definition of pregnancy, childbirth, or related medical conditions under the PWFA is broad. The terms “pregnancy” and “childbirth” include current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatment, and use of contraception), labor, and childbirth (including cesarean childbirth). “Related medical conditions” are medical conditions relating to pregnancy or childbirth, and include termination of pregnancy (including miscarriage, stillbirth, and abortion); ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal (during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstruation; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections. The final rule states that the list of related medical medical conditions outlined in the final rule is not exhaustive.

PWFA covers these conditions without regard to severity meaning that the limitation related to any of the above conditions could be minor or episodic and would still fall within the coverage of PWFA.

Requesting an Accommodation & Documentation

To request an accommodation under the PWFA, the employee or applicant needs to communicate to the employer that there is a limitation (related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions) and they need an adjustment or change at work due to that limitation. Like with the ADA, there are no magic words.

Some examples include:

  • I’m having trouble getting to work at my scheduled starting time because of morning sickness.
  • I need more bathroom breaks because of my pregnancy.
  • I need time off from work to attend a medical appointment because of my pregnancy.

When it comes to documentation to support the need for accommodation, the PWFA permit employers to request supporting documentation when it is reasonable under the circumstances. For purposes of PWFA, reasonable documentation means documentation that is sufficient to (1) confirm the presence of a physical or mental condition, (2) whether that conditions is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, and (3) describe the adjustment or change at work that is needed.

However, the final rule indicates that there are certain circumstances in which requesting supporting documentation would not be reasonable under the circumstances, and those include:

  • When the limitation and the adjustment or change needed as a result is obvious
  • When the employer already knows about the limitation and the adjustment or change at work due to the limitation
  • When the employee is currently pregnant and needs breaks for the bathroom or to eat or drink, needs to carry water with them to drink, or needs to stand if their job requires sitting or to sit if their job requires standing
  • When the employee is lactating and needs modifications to pump at work or nurse during working hours
  • When the employer would not ask an employee for documentation in that situation normally

Legal Challenges to Implementation of the Final Rule

There have already been legal challenges filed regarding the implementation of the final rule. Tennessee, along with 16 other states, filed a lawsuit against the Equal Employment Opportunity Commission (EEOC) requesting a stay and preliminary injunction of the final rule. The primary allegation is that the EEOC exceeded its statutory authority in construing the PWFA’s coverage of “related medical conditions” to include abortion.

Takeaway for Employers

While employers in Nevada have been navigating accommodations for pregnancy, childbirth, and related medical conditions for some time, its important to review accommodation policies and procedures to ensure they are consistent with applicable law, including the PWFA. Additionally, employers should ensure managers are aware of the obligations and are trained on any new or updated procedures to ensure requests for accommodation are handling appropriately and expeditiously.