Pregnant Workers Fairness Act – What Every Veterinary Practice Owner Needs to Know

History 

On June 18, 2024, the Pregnant Workers Fairness Act (PWFA), which provides protection for pregnant workers was scheduled to go into effect.

The PWFA is far reaching

The protections under the PWFA apply to qualified employees with known limitations (both physical and mental conditions) that are related to, affected by, or arising out of pregnancy, childbirth, or such related medical conditions.

The PWFA sets forth a non-exhaustive list of covered events which would provide protection to pregnant employees, such as:

1. Current, past, potential, and intended pregnancy.
2. Infertility, fertility treatment and the use of contraception.
3. Termination of pregnancy, including via miscarriage, stillbirth, abortion, and ectopic pregnancy.
4. Gestational diabetes, pre-eclampsia, and hyperemesis gravidarum.
5. Nausea, vomiting, high blood pressure, post-partum depression or anxiety.
6. Lactation and conditions related to lactation; and
7. Menstruation.

Employers and Employees Must Engage in an Interactive Process to Identify Reasonable Accommodations

Under the PWFA, employers and employees are required to engage in an interactive process in order to identify what reasonable accommodations a pregnant employee may need. The PWFA outlines certain items that may be considered a reasonable accommodation, including but not limited to:

1. Frequent breaks.
2. Sitting/standing.
3. Schedule changes, including part-time work and paid or unpaid leave.
4. Remote work.
5. Providing reserved parking.
6. Light duty assignments.
7. Making the existing business location accessible or modifying the work environment (e.g., moving an employee’s workspace or providing protective equipment).
8. Job restructuring.
9. Temporarily suspending one or more essential job functions.
10. Acquiring or modifying equipment, uniforms, or devices; and
11. Adjusting or modifying examinations or policies.

The PWFA also requires that employers consider the following list of items which may determine if a reason accommodation would create an undue hardship on an employer:

1. The nature and net cost of the accommodation.
2. The overall financial resources of the facility/facilities involved, the number of persons employed at the facility and the impact on expenses and resources.
3. The overall financial resources of the covered entity, including the overall size of the business.
4. The type of operation or operations; and
5. The impact of the accommodation on an employer’s business, including the impact on other employees’ ability to perform their duties and the impact on the employer’s ability to conduct business.

Where an employee’s accommodation request involves the temporary suspension of an essential job function(s), the PWFA directs employers to take into account additional factors, such as:

1. The length of time the employee will be unable to perform essential functions.
2. Whether there is other work for the employee to accomplish.
3. The nature and frequency of the essential functions.
4. Whether other employees have benefitted from the suspension of essential functions in the past.
5. Whether other employees are able to perform the essential function; and
6. Whether the essential function can be suspended altogether and for how long.

In addition, the PWFA also states that employers must provide partial accommodations to a pregnant employee when it is reasonable, and were providing the full, requested accommodation would present an undue hardship to an employer.

An Employee May Self-Confirm Their Limitation and Need for an Accommodation

Generally, the EEOC anticipates that employers will accommodate employees based upon an employee’s communications with the employer, which would determine the appropriate accommodations. Under the PWFA, an employer is not required to request supporting documentation from the employee and may request such documentation only when it is reasonable under the circumstances to determine whether the employee has a particular limitation, and whenever the employee needs a change in work due to the limitation.

The PWFA identifies five (5) examples of when it is not reasonable for employers to ask for such documentation from an employee:

1. When the limitation and the needed accommodation is obvious, and the employee provides a self-confirmation.
2. When the employer already has sufficient information to determine the limitation and need for adjustment or change in work due to the employee’s limitation.
3. In connection with “predictable assessments,” and with an employee’s self-confirmation.
4. In connection with lactation and nursing accommodations, and with the employee’s self-confirmation; and
5. Where the accommodation is available to others without known limitations pursuant to employer policy or practice.

PWFA Final Rule May be Unconstitutional

On June 17, 2024, a federal court in Louisiana issued a preliminary injunction blocking the enforcement in Louisiana and Mississippi of the portion of the U.S. Equal Employment Opportunity Commission’s (EEOC) final rule interpreting the Pregnant Workers Fairness Act (PWFA) to require employers to provide abortion-related accommodations.

The ruling was issued just hours before the EEOC’s final rule took effect on June 18, 2024, and just days after a separate federal court in Arkansas rejected a bid by seventeen (17) other states for a similar preliminary injunction, finding those states lacked standing.

Current Status of the PWFA

It is full expected that the pending litigation in the Louisiana federal court and the Arkansas federal court will make its way through the appeals process, and eventually end up in front of the United States Supreme Court.

While litigation is pending, veterinary practice owners should be fully aware of the employee accommodations that are outlined in the PWFA, with the anticipation that all or at least a substantial proportion of the PWFA will be declared constitutional, and therefore enacted.

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