What is the Pregnant Workers Fairness Act (PWFA) and what does it require of employers?
The PWFA is a historic new law that was signed by President Biden in December 2022, and became effective on June 27, 2023. The PWFA is enforced by the U.S. Equal Employment and Opportunity Commission (EEOC). On April 15, 2024, the EEOC published the final regulations implementing the PWFA.
In short, the PWFA requires all employers with 15 or more employees to provide reasonable accommodations to a qualified applicant’s or employee’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”
How do employers determine if an employee is “qualified”under PWFA?
Employers have to make this decision on a case-by-case basis by evaluating:
The impact on the employee’s ability to perform their essential job functions with or without reasonable accommodations; and
If they are unable to do so, whether leave is a reasonable accommodation
How does the PWFA’s concept of “qualified” differ from the ADA?
The PWFA’s definition of “qualified” is a bit different and more protective of employees than that of the ADA.
Like the ADA…
Under PWFA, an employee is “qualified” if they can perform the “essential functions” of the job with or without a reasonable accommodation that does not pose an undue hardship
Under the PWFA, the “essential functions” of a position are the fundamental duties of the job (we know that’s a bit vague, but blame Congress, not us!)
Unlike the ADA, under PWFA, an employee is also “qualified” if they cannot perform the essential functions of the job (with or without a reasonable accommodation) if three things are true:
The inability to perform the essential functions is “temporary”
The employee can perform the functions “in the near future”
The employee’s inability to perform the essential functions can be reasonably accommodated
What is a reasonable accommodation under the PWFA?
“Reasonable accommodations” are any changes in the work environment or the way things are usually done at work. The concept is very broad. It’s sometimes helpful to separate the world of accommodations into two categories:
Leave accommodations (time away from work and not working)
Everything else
The PWFA makes it very clear that employers should be focusing mostly on the second category (to keep employees working) and that a leave accommodation should be a last resort.
The EEOC shares many examples on non-leave accommodations in its final regulations, including:
Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom
Changing a work schedule, such as having shorter hours, part-time work, or a later start time
Remote work
Temporary reassignment or modified work duties
This list is not exhaustive; many other reasonable accommodations may exist. The accommodation process is also dynamic: an employee may need different accommodations at different times during pregnancy or after childbirth.
When might leave be required as a reasonable accommodation under the PWFA?
Employers will usually need to consider leave as a reasonable accommodation under the PWFA if employees need time away from work to:
Go to health care appointments
Recover from childbirth or other medical conditions related to pregnancy or childbirth
How do PWFA leave accommodations interact with FMLA and state leave laws?
Employers must comply with all federal, state and local laws. The PWFA does not preempt other laws or limit more expansive or generous obligations under other federal, state or local laws. Sometimes, but not always, there are overlapping legal obligations under multiple laws at the same time. When that happens, employers must provide the best possible sources of legal protections available to employees.
As an employer, how do I know when to pursue leave accommodation discussions?
We recommend employers follow this order of operations:
First, consider whether leave is available, given the circumstances, under a FMLA or state leave law (we refer to these as leave “entitlements”)
Second, consider whether leave is available under your company leave policies (we refer to these as leave “commitments”)
Lastly, if an employee has no leave available under laws or company policies, consider whether leave should be provided as a reasonable accommodation under the PWFA or ADA
How does Cocoon help us comply with our legal obligation to explore and provide leave accommodations?
First, Cocoon’s software determines if employees have leave entitlements or commitments that cover the requested leave. If so, Cocoon administers the leave until the leave entitlements or commitments are fully exhausted.
If employees have no leave entitlements or commitments available to them (either because they’ve exhausted them, or they are not eligible for them), our Leave accommodation feature allows employees to request leave as a reasonable accommodation.
Important note: for employees to access this feature, you must toggle Leave accommodation support ON in your Cocoon Settings.
Cocoon does not approve or deny the leave accommodation request, but rather helps you facilitate the interactive process for leave accommodations, including allowing you to request supporting documentation from employees, if you determine such documentation is necessary and appropriate under the PWFA or ADA.
What information can we request from employees when considering leave as a reasonable accommodation?
The answer depends on the reason for the request and the state in which an employee is employed. The PWFA and ADA have similar but slightly different rules concerning the scope of permissible medical information requests. State law also may pose restrictions on the scope of medical information that may be requested in response to reasonable accommodation requests.
This blog post explains the legal issues well.
What decisions do we, as the employer, have to make when using Cocoon’s leave accommodation tool?
Cocoon’s platform streamlines the request and review processes, but you still retain sole responsibility and discretion over approving or denying any leave accommodation requests. You know best the details around the employee’s job, employment history, company policies, past practices, and your company’s risk tolerance to make informed decisions when considering leave as a reasonable accommodation. Those decisions include:
Whether it’s appropriate to redirect the conversation away from leave accommodations to non-leave accommodations (because non-leave accommodations might eliminate or reduce the employee’s need for leave)
Whether to request additional information (before approving or denying the accommodation request)
Whether the leave requested is reasonable, in that it will enable the employee to perform the essential functions of their position
Whether providing the leave would cause an undue hardship to the company
We also recommend considering whether it’s necessary to seek advice from your employment counsel on the obligations and/or risks associated with responding to an employee’s leave accommodation requests.
Where can I learn more about the PWFA and its requirements?
The EEOC has published a summary of the important issues employers should consider in What You Should Know About the Pregnant Workers Fairness Act.