iQ: Can the Pregnant Workers Fairness Act be invoked when a request for accommodation is made by an employee who is not pregnant?
A: Maybe. According to the new Equal Employment Opportunity Commission (EEOC) guidelines and depending on the particular circumstances, employees who are not pregnant may have rights under the Pregnant Workers Fairness Act (PWFA). While these EEOC guidelines are already being challenged in court, it is important to know what the EEOC deems to constitute statutory compliance and what conduct it might deem violative of its guidelines and the PWFA.
The PWFA mandates that covered employers offer “reasonable accommodations” to qualified employees or applicants with known limitations due to pregnancy, childbirth or related medical conditions, unless such accommodations pose an undue hardship to the employer. The PWFA supplements existing laws that prohibit discrimination based on pregnancy or pregnancy-related conditions, such as Title VII, the ADA, and state and local laws and regulations.
The PWFA prohibits employers from:
- Failing to provide reasonable accommodations
- Requiring an employee or applicant to accept an accommodation
- Denying equal employment opportunities
- Requiring the employee to take leave when other accommodations are available
- Taking adverse action against a worker for seeking or using a reasonable accommodation.
Some examples of possible reasonable accommodations under the PWFA include additional, longer or more flexible breaks; changing food or drink policies; and telework, light duty or leave.
The PWFA went into effect on June 27, 2023. On April 19, 2024, the EEOC issued its final interpretive guidance for the PWFA, which clarified that the law’s definition of “pregnancy, childbirth or related medical conditions” is very broad. Specifically, the EEOC stated that employees experiencing medical conditions such as infertility, menstruation, anemia, sciatica, changes in hormone levels, endometriosis, fertility treatments, miscarriages or abortions are covered by the law. This list of conditions is not exhaustive. For example, the EEOC would deem an employee who is not pregnant but requests leave to attend a medical appointment related to removal of a contraceptive device is likely covered by the law. Similarly, the EEOC would deem an employee who is not pregnant but who requests to work from home due to cramping or negative side effects from IVF also is likely covered by the law.
Employers should be aware that requests for accommodations arguably related to pregnancy or potential pregnancy could implicate the PWFA. Employers who have questions regarding this rapidly evolving area of statutory and administrative law should seek legal guidance.
Remember, if you have 15 or more employees, you are covered by the PWFA and should seek guidance to ensure that you understand your obligations and rights under this and other statutes that regulate your workplace policies.
