On Dec. 29, 2022, President Biden signed the 2023 Consolidated Appropriations Act, which was largely designed to fund the federal government. However, included in that bill was an amendment known as the Pregnant Workers Fairness Act (PWFA). Although the PWFA is significant in that it codifies into federal law protections for pregnant workers that were not previously in place, the significant overlap between an employer’s legal obligations under the new PWFA and the existing Americans With Disabilities Act (ADA) likely limits the practical effect of the PWFA for most employers. At the same time, there are a few key distinctions that are pointed out below, one of which could create a concern for employers.

When is the PWFA in effect? June 27, 2023.

Who does the PWFA cover? Similar to the ADA and many other federal employment laws, it covers private employers with fifteen or more employees and certain other public employers.

What does the PWFA do? The PWFA makes unlawful these six acts:

1. Failing to make reasonable accommodations to “the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee” unless an employer can show that providing that accommodation would pose an undue hardship. 
2. Requiring a qualified employee affected by a pregnancy, childbirth, or related medical conditions to accept an accommodation other than a reasonable accommodation arrived at via the interactive process. 
3. Denying a qualified employee an employment opportunity based on the need for a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions. 
4. Requiring a qualified employee to take paid or unpaid leave if another reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions could be provided. 
5. Taking an adverse employment action against a qualified employee based on the need for a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions. 
6. Retaliating against anyone who complains about a violation of the PWFA or participates in an investigation, hearing, or proceeding related to the same. Coercing, threatening, intimidating, or interfering with anyone’s rights under the PWFA or with anyone who aided or encouraged someone to assert their rights.

What does each of these mean?

1. This one is very similar to what employers must already provide under the ADA – i.e., a reasonable accommodation that does not impose an undue hardship. The distinction here is that a reasonable accommodation under the PWFA must be provided for “known limitations.” So what are those? A “known limitation” is a “physical or mental condition related to the pregnancy, childbirth, or related medical conditions of a qualified employee” that has been communicated to the employer but does not have to rise to the level of a disability under the ADA. As most employers likely know, after the ADA’s amendments in 2008, it is not a very high bar for an employee’s physical or mental impairment to constitute a disability. Until the Equal Employment Opportunity Commission (EEOC) clarifies what constitutes a “condition” under the PWFA, one way to view it is that it is an even lower bar than what constitutes a disability under the ADA. 
2. This one is interesting more for its legal effect than its practical effect. Under the ADA, it is the number one best practice to engage in the “interactive process” with any employee who asks for a reasonable accommodation because of a disability – i.e., asks for help because of some medical issue. But while it is a best practice, it is not a per se ADA violation if an employer fails to do so. Under this section of the new PWFA, it is a stand-alone statutory violation to require an employee to accept an accommodation unless it was arrived at through the “interactive process.” In other words, under the PWFA, it very likely is a per se violation if you fail to engage in the “interactive process.” 
3. This one is simple – an employer cannot fail to hire, promote, etc., because an employee needs a reasonable accommodation under the PWFA. 
4. This one is also interesting. As most employers know, under the ADA, a disabled employee is not entitled to the accommodation of his or her choice. A disabled employee is simply entitled to a reasonable accommodation. And because a period of leave can be considered a reasonable accommodation, placing a disabled employee on leave is always a fallback option if other reasonable accommodations cannot be achieved. To be sure, even under the ADA, placing a disabled employee on leave should be reserved as a fallback. But under the PWFA, it is now a codified violation to place an employee on leave if another reasonable accommodation can be provided. So rather than a fallback, leave under the PWFA should be a last resort. 
5. This one is also simple – an employer cannot take any adverse employment action against an employee who sought or used a reasonable accommodation under the PWFA. 
6. This is the mirror image of the anti-retaliation provision under the ADA and most anti-retaliation provisions seen in other federal employment laws. 

Are there any other key differences between the ADA and the PWFA? The other key difference between the ADA and the PWFA relates to what constitutes a “qualified employee.” Under the ADA, a “qualified employee” means “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Thus, under the ADA, the “essential functions” of the individual’s job are vitally important. If the individual cannot perform the job’s essential functions even with an accommodation, that person is not a “qualified individual.” Similarly, any accommodation that would eliminate an essential function of the job is not a “reasonable accommodation.” 

Under the PWFA, the definition of “qualified individual” is the same, but with key exceptions. An individual is still considered “qualified” if: 

1. The inability to perform an essential function is for a temporary period; 
2. The essential function could be performed in the near future; and 
3. The inability to perform the essential function can be reasonably accommodated. 

What does this key difference mean for employers? Because most of an employee’s limitations at issue under the PWFA will be temporary, these exceptions may very well swallow the rule. What does that mean? It means that even if a worker who needs an accommodation under the PWFA cannot perform the essential functions of the job, employers may still need to provide the accommodation. This is one area that needs, and will likely receive, clarification from the EEOC. But until then, the potential need to provide accommodations under the PWFA, even when they eliminate an essential job function, could make for some difficult and legally fraught decisions for employers. 

Consult Taft’s employment law attorneys for up-to-date guidance on the PWFA.