What Does the Pregnant Workers Fairness Act (PWFA) Mean for Employers?

The Pregnant Workers Fairness Act (PWFA) and its final regulations are now in effect as of June 18, 2024, following a key court decision. While a federal court has exempted Louisiana and Mississippi from provisions related to elective abortion, employers nationwide must provide reasonable accommodations for a broad range of pregnancy-related conditions.

What is the Pregnant Workers Fairness Act (PWFA)?

The Pregnant Workers Fairness Act (PWFA) is a federal law that requires covered employers to provide reasonable accommodations to employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would impose an undue hardship on the employer's operations. This fills a gap in existing law by explicitly mandating accommodations, similar to the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission (EEOC) is the agency responsible for enforcing the PWFA and issued its final rule on April 19, 2024.

What Conditions Are Covered Under the PWFA Final Rule?

The EEOC's final rule defines "pregnancy, childbirth, or related medical conditions" very broadly. This includes, but is not limited to:

• Current pregnancy
• Past pregnancy
• Potential or intended pregnancy, including infertility, fertility treatments, and the use of contraception.
• Labor and childbirth
• Lactation and related conditions
• Termination of pregnancy, including miscarriage, stillbirth, and abortion.

It was the inclusion of abortion that led to legal challenges. However, based on our assessment of the court rulings, employers across the country, except for specific exemptions in Louisiana and Mississippi, must consider accommodation requests related to abortion.

How Did the Recent Court Rulings Affect the PWFA?

Two federal courts issued differing rulings just days before the PWFA was set to take effect.

Arkansas Court Upholds the Rule: On June 14, 2024, a U.S. District Court in Arkansas denied a request from 17 state attorneys general to block the entire PWFA rule. The court found the states lacked standing, as they could not demonstrate immediate, irreparable harm. This ruling allowed the PWFA to take effect nationwide as scheduled.

Louisiana Court Grants a Partial Exemption: Hours before the effective date, a U.S. District Court in Louisiana issued a preliminary injunction. This order exempts the states of Louisiana and Mississippi, their agencies, and certain religious organizations from being required to provide accommodations for "elective abortions that are unnecessary for treating a pregnancy-related medical condition." The court held that the EEOC exceeded its authority by including elective abortion in the rule.

Key Takeaway for Employers: The PWFA is in effect. Employers in Louisiana and Mississippi have a limited exemption regarding elective abortions, but must still comply with all other provisions of the Act. Employers in all other states must comply with the full EEOC rule, including accommodations related to abortion.

What Are an Employer's Practical Obligations Now?

For HR professionals and business owners, the immediate focus should be on compliance. Reasonable accommodation is a flexible process and must be provided unless it causes significant difficulty or expense. Key steps include:

1. Train Management: Ensure managers and supervisors understand the basics of the PWFA and know how to handle an accommodation request.
2. Review Policies: Update your employee handbook and accommodation policies to explicitly reference the PWFA and its broad scope of covered conditions.
3. Engage in the Interactive Process: When an employee requests an accommodation for a pregnancy-related condition, engage in a timely, good-faith dialogue to find a solution. Document the process.
4. Understand Undue Hardship: The bar for claiming undue hardship is high. It is based on the nature and cost of the accommodation in relation to the employer's size, financial resources, and business operations.

To ensure compliance with the PWFA, employers should proactively update their policies, train their staff on the new obligations, and be prepared to engage in the interactive process for a wide range of pregnancy-related conditions.