The Law
The PWFA requires employers with 15 or more employees to provide reasonable accommodations for otherwise qualified employees and job applicants with known limitations relating to pregnancy, childbirth, or related medical conditions — unless doing so would impose an undue hardship on the employer. The PWFA provides a private cause of action for violations in the same manner as other equal employment opportunity laws. Claims against employers may be initiated by filing a charge with the EEOC and can lead to court action and damages. The PWFA does not replace existing laws that provide pregnancy-related employment protections, so employers must continue to comply with federal laws such as the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and the Pregnancy Discrimination Act, as well as any applicable state or local law.
Reasonable Accommodations
The PWFA is significant because under the ADA pregnancy alone is not considered a disability. Like the ADA, employers now have an affirmative duty under the PWFA to en- gage in an interactive process to determine whether reasonable accommodations exist for “known limitations” relating to pregnan- cy, childbirth or related medical conditions.
The type of accommodations that may need to be provided under the PWFA range widely, depending upon the employee’s needs and job duties. Examples include increased access to water, increased bathroom breaks or avoiding high-risk physical tasks such as lifting heavy objects. Extended leave away from work may also be a potential accommodation. Significantly, however, the PWFA specifically prohibits employers from requiring an employee to take leave, paid or unpaid, if another reasonable accommodation can be provided.
Related Medical Conditions
Numerous related condition examples are provided in the proposed regulations, including: miscarriage, stillbirth or abortion; infertility; fertility treatment; lactation and related conditions; use of birth control; menstrual cycles; postpartum depression, anxiety or psychosis; cesarean or perineal wound infection; endometriosis; and changes in hormone levels.
Qualified Employee
Unlike the ADA, the proposed PWFA regulations provide that it might be necessary to accommodate an employee who cannot perform their “essential duties” if: 1) the inability to perform an essential job function is for a temporary period; 2) the essential job function(s) could be performed in the near future (i.e., the employee will be able to generally resume performing within 40 weeks of duty suspension); and, 3) the inability to perform the essential function(s) can be reasonably accommodated.
What’s Next
While much of the PWFA is similar to the ADA, the PWFA and its federal regulations contain statutory terms and definitions which are unique. Given the complexities of compliance, you are encouraged to seek legal counsel to discuss specific issues and concerns.
In addition, while many employers already have policies in place that are consistent with the PWFA, covered employers should review and, if applicable, update their accommodation policies and procedures to ensure compliance with the PWFA. Finally, human resource personnel, supervisors and managers should be trained on the PWFA to ensure compliance.
This article provides a general overview of the PWFA and is not intended to be legal advice. For more information, contact Attorneys Jamie R. Schumacher or Lauren A. Holler 814/870-7600.
Jamie Schumacher is a partner at MacDonald Illig and chair of the Erie County Bar Association Civil Litigation Section. She practices in the firm’s Commercial Litigation, Labor & Employment, and Government Services Practice Groups.
Lauren A. Holler is a labor and employment attorney at MacDonald Illig where she helps a variety of public, private and nonprofit employers develop mutually beneficial labor relations with employees.
