The Pregnant Workers Fairness Act (PWFA) was enacted on June 27, 2023, for all employers with 15 or more employees, significantly expanding protections for not only pregnant women, but also perhaps an even wider group, depending on the Equal Employment Opportunity Commission (EEOC) rulemaking enforcement guidance, which has yet to be finalized.
At the CLM 2024 Annual Conference session, titled, “Explore Employer Liability and Potential Implications of the Pregnant Workers Fairness Act (PWFA),” speakers Dove Burns, partner, Obermayer Brebmann Maxwell and Hippel LLP; Claudia Costa, partner, Gordon & Rees LLP; Jaqueline Gallagher, partner, O’Hagan Meyer PLLC; and Carrie Graziani, assistant vice president, specialty claims management liability, Hanover Insurance, discussed how employers may be impacted by claims citing this new act.
Gallagher read the EEOC’s proposed rule’s definition of “pregnancy, childbirth, or related medical conditions” as “current pregnancy, past pregnancy, potential pregnancy, lactation including breastfeeding and pumping, use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.”
Background
Prior to the act, explained Burns, “There was the Pregnancy Discrimination Act (PDA) as an amendment to Title XII, that prohibits discrimination…and then there’s the ADA [Americans with Disabilities Act), but the ADA…didn’t specifically apply to pregnancies unless they were remarkable [and] qualified as a disability. So, that’s why there’s a need for the PWFA and also the overlapping with the FMLA [Family and Medical Leave Act],” she noted.
Gallagher explained, “The PWFA says that you can and may be required to excuse an employee from performing the essential functions of a job…[and] they modeled the language and the framework on the ADA.”
“It’s a limitation; not a disability,” emphasized Costa. “So, people [may say], ‘Well, she doesn’t have a disability…’ and…no, it’s a limitation. So, again, [that is] the education that now needs to go to our client, and particularly carriers who are underwriting.”
PWFA vs. ADA
“One of the big issues is comparing and contrasting [the PWFA] with the ADA: What is different about the PWFA? What should we be highlighting to those who are otherwise in the know about the ADA?” said Burns. “One is that it is intended to cover a scope of employees who otherwise wouldn’t be covered by the ADA because it doesn’t qualify as a major life activity. It’s either a temporary restriction or something related to pregnancy…it’s intended to be more expansive. Two references an individual with disabilities now a known limitation—although we don’t know what a known limitation is, so, in and of itself, it’s inconsistent…The whole idea of a reasonable accommodation with regard to the PWFA is also very, very different than the ADA,” said Burns.
Furthermore, “the ADA requires severe severity; this has no level of severity required…it’s a physical or mental condition. So, mental conditions under the ADA, especially post-COVID, work-from-home, those accommodations, now we’re going to say, ok, so you’re depressed or have anxiety associated with an abortion…you’ve expressed anxiety or depression with a miscarriage…or you’re trying to get pregnant and it’s depressing that you can’t. So, all these things are intended to be covered by the PWFA.”
She continued, “One of the biggies that’s a huge difference to explain to insureds is no, you cannot, as a matter or policy, require documentation or verification. Huge difference. You can in certain circumstances,” however, overall, you cannot, as a matter of policy.
Assumed Accommodations
“The statute itself lays out what accommodations should be assumed,” said Burns. “So, what are employers are assumed to have to provide. Which, again, is different than the ADA where nothing is really assumed. And it’s allowing an employee to carry water and drink as needed in an employee work area…allowing employee an additional restroom breaks; allowing an employee whose work requires standing to sit; allowing an employee breaks as needed to eat and drink…so those aren’t shocking, but then it goes further and it says what things are likely to be reasonable accommodations…schedule changes; part-time work; telework; job restructuring…and temporarily suspending one or more essential job functions.”
Burns added, “So, how do you accept whether what’s being proposed is reasonable? Because they’re already telling you a lot more is reasonable than you think…so, it’s saying, whether employees or temporary workers or even third parties can perform a job function, you may have to temporarily hire a temp to accommodate. And again, whether the essential function can be temporarily postponed or unperformed for a length of time.”
Case Study
There is one published decision under the PWFA out of the state of Texas, which challenged the constitutionality of the law, according to Gallagher. “A district court judge in Texas agreed that Congress followed an unconstitutional process in passing the law because it was an amendment to an appropriations bill. So, this judge issued a permanent injunction. It was just at the end of February [2024], so the PWFA does not apply to individuals employed by the state of Texas. Much to my surprise, it wasn’t appealed. …When I thought about it, the administration probably didn’t appeal because it’s such limited applicability…it will be interesting to see if others will challenge the applicability of the law based on the procedure used to pass the law.”
White-Collar vs. Blue-Collar
“I think the dichotomy between the white collar and blue collar will drive a lot of these claims,” said Gallagher. “It’s so much easier to accommodate if you’re in a white-collar position and to reassign duties and work remote. It’s the blue collar or the hourly workforce where there’s going to be much greater difficulty trying to accommodate.”
Costa concurred. “I also think economic scenarios, positions in life, drive litigation…I know that when I get a claim and it’s an executive that’s making six figures or so, and—listen, let’s face it, everyone’s going to know that you sued, I know we all try to say you’re not supposed to retaliate—but a lot of people in C-suites usually move onto another position. But if you’re making $35-40,000 a year and your attorney sends a letter…you know it’s going to happen quicker because they need the money. The reality of life is they need money, so, I think a lot of these claims will be brought by the blue-collar workers who [will say], ‘OK, I just lost my job, I’m having a child, I need the money, now I get paid maternity leave because there’s not paid maternity leave required.’”