By: Ray A. Young, Jr.

The Pregnant Workers’ Fairness Act (“the Act”) went into effect on June 27, 2023, guaranteeing additional protections to workers with known limitations from pregnancy, childbirth, and other related medical conditions. The Act is a “spin-off” of the Americans with Disabilities Act (“ADA”) and includes limitations resulting from pregnancy, childbirth, or other medical condition within the ADA’s definition of a disability. The Act imposes several new requirements on employers to not discriminate against persons covered by the Act and to provide reasonable accommodations to “qualified employees”.

Who is entitled to “reasonable accommodations” under the Act?

Short answer: A qualified employee with known limitations resulting from pregnancy, childbirth, or other related medical conditions.

A “qualified employee”, as defined in the Act, is any employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position. An employee is considered “qualified” even if the employee is unable to perform the essential function for a temporary period, the function could be performed in the near future, and the employee’s inability can be reasonably accommodated.

Importantly, though, the Act’s benefits are not triggered unless and until the limitation is known by the employer. The qualified employee or his or her representative must first communicate to the employer whether or not his or her condition meets the definition of “disability” specified in Section 3 of the ADA. It is unclear at this stage whether the communication has to be in writing or otherwise presented with documentation from a physician. We anticipate the EEOC regulations will expound on these specifics.

Reasonable Accommodations under the Act:

 This is the moving target! Congress, in its wisdom, elected to not include a specific definition of what it considers a “reasonable accommodation” under the Act. But it did instruct employers to engage the “Interactive Process” to determine which accommodation is reasonable for the qualified employee. This is the same interactive process used in other requests under the ADA.

The Interactive Process includes discussions with the employee and/or health care provider regarding the nature of the disability and the limitations that may affect the employee’s ability to perform the essential job duties. “Employee” also includes an applicant for employment.

Best practice for employers is to have documentation of the request, obtain a written medical release from the employee or applicant, and ask the individual to provide appropriate documentation from the his or her health care provider regarding the nature of the limitation, i.e., the impairment, its severity, the duration, the activities limited by the impairment, and the extent to which the impairment limits the employee’s ability to perform the essential duties or functions of the job. The goal here is to obtain sufficient information necessary to determine the type of accommodation that is reasonable in light of the employee’s medical condition.

In addition, the Act expresses numerous prohibitions related to provision of reasonable accommodations:

• An employer may not require an employee to accept an accommodation that is not determined to be reasonable via the Interactive Process;
• An employer cannot deny an otherwise qualified applicant employment because of the need to provide a reasonable accommodation;
• An employer cannot require an employee to take paid or unpaid leave if another reasonable accommodation can be provided; and,
• An employer cannot take adverse action regarding terms, conditions, or privileges of employment against a qualified employee because the employee is requesting or using a reasonable accommodation.

Undue hardship:

 An employer must make reasonable accommodations unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. Congress did not define “undue hardship” in the Act. In the ADA, Congress defined “undue hardship” as an action requiring significant difficulty or expense. Unlike the section of the Act on the Interactive Process, Congress did not incorporate by reference the ADA’s definition of undue hardship. Thus, it is likely the EEOC will provide a definition or more context in its regulations. Otherwise, the definition and its application will become the topic of litigation that will undoubtedly ensue.

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NOTE: Although the Act went into effect on June 27, 2023, the EEOC has one year from the date of enactment of the Act to issue regulations. The regulations will provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions. Despite this timeline, the EEOC is already accepting, reviewing, and investigating Charges of Discrimination based on the Act.

Fletcher & Sippel’s Labor and Employment Team is monitoring the developments regarding the Act and the EEOC’s regulations. If you have any questions about the Pregnant Workers’ Fairness Act, please contact Ray A. Young, Jr. directly at 601-414-6053 or via email at ryoung@fletcher-sippel.com.