EEOC Issues Guidance Regarding the Pregnant Workers Fairness Act

By Vicki M. Crochet

The Federal Pregnant Workers Fairness Act (PWFA) 42 U.S.C. §2000gg et. seq. went into effect on June 27, 2023. In the same month, the EEOC published “What You Should Know About the Pregnant Workers Fairness Act.”

In its guidance, the EEOC explains that the PWFA protects “covered employees” and applicants with known limitations related to pregnancy, childbirth or related medical conditions. Public and private sector employers, Congress, Federal agencies, employment agencies, and labor organizations with at least 15 employees are considered “covered employees” under the PWFA. (In 2021, Louisiana law (La. R.S. 23:341-42) was amended to require essentially the same types of accommodation but Louisiana law applies to employers with 25 or more employees).

Unlike the Pregnancy Discrimination Act (PDA) 42 U.S.C. §2000e(k), the PWFA does more than prohibit discrimination against individuals who are pregnant or experiencing pregnancy-related medical conditions. The PWFA requires employers to provide reasonable accommodation to pregnant employees and engage in the same type of “interactive dialog” required by the Americans with Disabilities Act (ADA). However, unlike the ADA, a covered employee does not have to show that the pregnancy or related physical or mental condition substantially limits a major life activity. Additionally, a covered individual is considered “qualified” even if unable to perform an essential job function for a “temporary period” if the essential job function can be performed in the near future and can be reasonably accommodated.

The EEOC describes several examples of reasonable accommodations that an employer must consider. These include allowing the employee to sit or drink water as needed, assigning closer parking and granting flexible hours. Other examples include allowing additional break time to use the restroom, eat or rest and temporary reassignment from strenuous activities and/or activities that involve exposure to substances not safe during pregnancy.

The EEOC also notes that the PWFA prohibits employers from requiring an employee to accept an accommodation without engaging in an interactive dialog. Finally, an employer cannot deny job opportunities based on the need for reasonable accommodation; mandate that an employee take leave if another reasonable accommodation can be provided; retaliate against an individual for reporting or opposing unlawful discrimination or interfere with any individual’s rights under the PWFA.

Complaints arising under the PWFA must be filed with the EEOC. The situation complained about in the charge must have occurred on June 27, 2023 or later. If applicable, the EEOC may also process the charge under Title VII and the ADA.

Although final regulations will not be issued until December 2023, employers should immediately take steps to comply with the requirements set forth in the PWFA.

About Vicki M. Crochet: Taylor Porter Partner Vicki M. Crochet, practicing law since 1980, is the Practice Leader of the Firm’s Employment, Labor and Benefits practice, and is the Vice-Chair of the Taylor Porter Executive Committee.  Vicki practices in all areas of employment law, advising clients regarding policies and procedures; representing them before governmental agencies including the EEOC, OFCCP, the Louisiana Commission on Human Rights (LCHR), and the Louisiana Civil Service Commission; and handling all aspects of employment litigation.