Accommodating All: Pregnant Workers Fairness Act goes into effect June 18

The U.S. Equal Employment Opportunity Commission issued the final ruling of its Pregnant Workers Fairness Act on April 15, with the rule going into effect June 18. Companies with at least 15 employees must provide reasonable accommodations for known limitations regarding pregnancy, childbirth or a related medical condition.

Lynette Weatherford, president and owner of HR Advantage, said that, while the PWFA is similar to the Americans with Disabilities Act and Title VII, there are key expansions.

“This is going way beyond, and employers need to pay attention,” she said. “Don’t just assume that it’s similar to the ADA. It’s not. It’s a whole new ballgame.”

Qualified employees are those who can perform essential job functions with or without reasonable accommodation, and these include job applicants. The accommodation is time-limited and generally resumable within 40 weeks, the length of an average pregnancy. The EEOC defines reasonable accommodations as “a change in work environment or how things are usually done,” including additional breaks, sitting or standing options, schedule changes, part-time work, paid and unpaid leave, remote work, light duty, workplace accessibility or modification of equipment, uniforms or devices.

“There are no black-and-white symptoms that we could ever predict,” Weatherford said. “Just be open-minded and just explain it and be humane and sympathetic to the employee.”

The accommodation must not cause the employer “undue hardship,” defined as a significant difficulty or expense. This definition will change from employer to employer. What is difficult for a small nonprofit may be different to a large corporation, said Karen Shannon, vice president of business consulting and chief human resources officer at Ollis/Akers/Arney. However, most accommodation requests are not likely to cause undue hardship.

“It would be hard to substantiate not doing some of these things listed – sitting down and standing up, having a water bottle,” Shannon said. “Most of the time, the accommodation requests are things that aren’t unreasonable.”

The definition of a pregnancy-related condition is significantly broadened to include a current or past pregnancy, menstruation, fertility treatment, endometriosis, contraceptive care and pregnancy termination including miscarriage, stillbirth, or abortion. The EEOC cited abortion’s inclusion as covered under the PWFA’s anti-discrimination law which “does not regulate the provision of abortion services or affect whether and under what circumstances an abortion should be permitted.”

Following the June 24, 2022, overturning of Roe v. Wade, Missouri Gov. Mike Parson implemented a trigger ban permitting abortion only for medical emergencies. In February, two unimplemented amendments that were introduced in the state Senate attempted to include exemptions for rape and incest. On April 24, the Missouri House of Representatives banned Medicaid funding for Planned Parenthood, and that may require more people to travel outside of the state for services.

Missourians must travel to seek abortion care outside of medical emergencies, noted by the EEOC as the most likely abortion-related accommodation under the PWFA. However, employers will likely not know the details of why their employee requests an accommodation. Employers may request medical documentation to meet minimum requirements to confirm a physical or mental condition and are considered discriminatory if requesting documentation beyond what’s needed. Requesting documentation for lactation is prohibited except for remote work. If an employee feels the request is breaching their privacy, they can file a complaint with the EEOC.

Shannon said that while employers have the ability to request a doctor’s note, they are not required to do so on a specific form. Requests can be made by the employee or an appropriate representative, including a health care provider or union representative.

“As employers, we typically want enough information to make decisions, but not necessarily dig into the details from an employee privacy perspective,” she said. “We as employers rely on information provided by someone’s medical provider.”

Six days after the Supreme Court overturned Roe v. Wade, Springfield-based website design and digital marketing firm Mostly Serious LLC implemented a Reproductive Medical Care Leave and Travel Expense Policy. Nearly two years later, CEO Jarad Johnson said the decision has created a culture of safety that is already in alignment with the PWFA. Mostly Serious’ benefits provide paid time off for reproductive medical care not available in the employee’s home state – reimbursing up to $1,500 in travel expenses. Employees do not need to provide documentation of need.

“[Requesting documentation] could cause a breach of ethics if the employer is requesting too much information and becomes invasive into the pregnant employee’s life,” Johnson said. “Employees could also fear retribution or legal action if they are putting in the request for travel to obtain abortion care.”

The PWFA does not require employers to pay for abortions or travel related expenses, Weatherford clarifies. She reminds employers to keep perspective: “As employers, it’s not the time to give our opinion. If an employee needs to take time off for a medical-related need, they might have the provider say it and not give details. The doctor could say the person is under their care and best practice is that they need to rest 24-28 hours. … We are just trying to confirm it’s a pregnancy-related medical condition. Yes or no. We don’t need details.”

Johnson said he received no backlash from his 2022 policy and said there were positive comments from some local businesses and individuals who wished their employer would implement a similar policy. Mostly Serious will not have to make many changes for the PWFA.

“We strive to create a culture that ensures healthy, fulfilled and productive team members who don’t have to worry as much about their jobs while enduring the stress of major life events, unforeseen disruptions to their health or their family’s health or even the smaller inconveniences that pop up from time to time,” he said. “Because we aim to get ahead of these things within our company, we are often ahead of any regulations like these.”

There are important steps companies must take to be in compliance, Shannon said. including updating handbooks with the PWFA and 2023 PUMP Act guidelines covering break time and a private place for pumping breast milk at work. Employers also must post updated 2024 labor law posters that include the PWFA. A notable shift in the PWFA is a moving away from formality, said Weatherford, including not requiring specific documentation. However, she encourages employers and employees alike to always document interactions, requests and decisions. She also suggests frequent check-ins with employees throughout the duration of the accommodation. 

Shannon said to actively and frequently seek consultation with an HR representative and legal counsel to ensure compliance. She agrees with Weatherford that it’s also imperative to adequately train front-line managers.

“Give them information proactively along with all of their other labor-law type training,” Shannon said. “As manager, you’re an agent of that organization in the eyes of the law. You are the company.”

Johnson said it’s well worth the effort: “When making any kind of policy change, transparent and open communication goes a long way in creating understanding and alignment with employees. … A company with clear expectations, a high level of accountability and a flexible environment with industry-leading benefits. That includes ensuring that people know they will be taken care of during both the unbelievably challenging and unbelievably beautiful life moments.

Take every request seriously, Shannon said, and incorporate a collaborative, interactive dialogue process. She encourages employers to remember most accommodations will be an easy yes, and approving requests increases employee quality of life and strengthens the professional relationship.