We all knew the Pregnant Workers Fairness Act (PWFA) would be a game changer. While challenges to the PWFA work their was through the courts, the Equal Employment Opportunities Commission (EEOC) is wasting no time enforcing the new law. In the last three weeks, EEOC has filed three lawsuits against employers, alleging violation of the PWFA. The common thread? The accommodation requirement, which is unlike accommodation mandates in other laws.
ACCOMMODATION: Accommodation under the PWFA does not have a severity threshold. a pregnant employee does not need to have abnormalities or illness with her pregnancy. Pregnancy itself triggers accommodation and the very important interactive process. The PWFA also prohibits forcing a modification other than “any reasonable accommodation arrived at through the interactive process.” An employer cannot require a covered employee to take leave–paid or unpaid–if there is another reasonable accommodation.
MEDICAL DOCUMENTATION: As well as accommodation, the three lawsuits claim medical documentation mistakes. Under the PWFA, employers cannot request medical documentation if the need is obvious. The EEOC gives the example of requesting a bigger uniform or more bathroom, sitting breaks. In limited circumstances, medical documentation requests are allowed.
TAKEAWAYS: The EEOC is enforcing the law now–do not wait for the state court challenges. Keep in mind, the PWFA is not the ADA–the accommodation and medical documentation requirements differ. Finally, the PWFA goes beyond pregnancy and includes pregnancy, past pregnancy, potential pregnancy, lactation, use of birth control, menstruation, infertility treatments, endometriosis, miscarriage, still birth and abortion. It is crucial that your supervisors and managers know the ins and out of this new law.
QUESTIONS? We can help. We have a nifty fixed fee tool kit to with notices, and a pregnancy accommodation and breast feeding policy to keep you in compliance.