On August 11, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) posted a Notice of Proposed Rulemaking to establish the Pregnant Workers Fairness Act (PWFA). This proposed rule would require employers to grant reasonable accommodations to qualified employees with “known limitations” arising out of the employee’s pregnancy or related medical condition.
In many respects, the PWFA models the Americans with Disabilities Act (ADA). First, to protect employers, the PWFA would implement a similar undue hardship rule where an employee seeking PWFA accommodation would not be entitled to such accommodation if it would cause an undue hardship to the employer. Second, the remedies available under the PWFA would be similar to the ADA’s monetary damages. Further, several key definitions under the PWFA are identical or very similar to the ADA, including: ‘essential function,’ ‘reasonable accommodation,’ ‘undue hardship,’ and ‘qualified.’
However, in other respects, the PWFA would extend protections for workers beyond the scope of the ADA. For instance, the PWFA includes another definition of ‘qualified’ in addition to the ADA definition. The PWFA allows an employee to be ‘qualified’ even if the employee cannot perform one or more essential functions of the job, so long as that inability is “temporary.” Also, the PWFA defines a ‘known limitation’ as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the covered entity whether or not such condition meets the definition of disability” under the ADA. Thus, a ‘known limitation’ is broader than an ADA ‘disability.’
For pregnant or soon to be pregnant employees, the PWFA would extend employment protections and allows reasonable accommodations if the pregnancy or related medical conditions alter the employee’s ability to work. The proposed rule also provides a cause of action for employees to recover damages if their accommodation request is wrongfully denied.
Alternatively, for employers, the PWFA would impose more stringent accommodation requirements. The PWFA would likely increase the number of accommodation requests and approvals as it limits the undue hardship defense in circumstances where the employee’s inability to perform essential job duties are ‘temporary.’ Simply put, the PWFA could increase employer liability, and it would require business owners and employers to be more careful when handling accommodation requests. The public may comment on this proposed rule on the Federal Register until October 10, 2023.
If you need more guidance or information, contact the employment law attorneys at General Counsel, P.C. today at 703-556-0411, intake@gcpc.com, or use this Contact Us Form. Attorneys at General Counsel, P.C. specialize in labor and employment law and have experience working with businesses, non-profits, and individuals throughout the DC Metropolitan area and across Virginia, specifically in Fairfax County, Arlington, and Loudoun County.