In June 2023, the federal Pregnant Workers Fairness Act (PWFA) went into effect nationwide. [Read More Here: Pregnant Discrimination for South Carolina Employees] As part of that law, Congress instructed the Equal Employment Opportunity Commissions (EEOC) to issue more detailed rules to put the law into effect. [Read More Here: What is the Equal Employment Opportunity Commission?] The EEOC issued those required rules in April 2024, and in June 2024, the new rules went into effect. In essence, these rules provide guidance and interpretation assistance for companies and employees seeking to use and abide by the law’s new requirements.
So What Are Those New Requirements Under the Pregnant Workers Fairness Act?
This new law essentially places a pregnancy accommodation request on the same level as a traditional ADA (Americans with Disabilities Act) accommodation request for a disability, subject to the same obligations of the employer to engage in the “interactive process” (a good faith conversation) in an effort to find a reasonable accommodation that allows the employee to still perform the essential functions of the position. But instead of a “disability,” the accommodation is required for an employee’s known limitations related to or arising out of pregnant, childbirth, and related medical conditions.
“Known limitation” means that the the employee has told the company about the limitation. If the employee never lets the company know about the pregnancy-related limitation, then the law won’t apply. The known limitation does not necessarily have to meet the definition of a disability under the ADA. A known limitation could even be (1) temporary physical and mental conditions that are modest, minor, or episodic (short term issues), or (2) a problem related to the maintaining the employee’s health or the health of the pregnancy, or (3) seeking health care related to a pregnancy, childbirth, or a related medical condition (such as hospital visits or appointments with your OB/GYN or primary care doctor). The law is designed to be broader than the ADA and cover most medical issues related to pregnancy.
Normally under the ADA, the employee with a disability has to be able to perform the essential functions of the position with the reasonable accommodation. However, under the PWFA, even if the employee cannot perform one or more of the essential functions of the position, the employee is still qualified under the PWFA so long as the inability to perform the essential function is temporary and the employee could perform the essential function in the near future. That means that if walking is an essential function and your doctor says you can’t do that for the remainder of the pregnancy, then the inability to walk would be short term (i.e., the employee could return to regularly walking duties after recovery from the pregnancy) and would still be covered. But again, this is still subject to the company’s claim that such a restriction would place an undue burden on the company.
Examples of Reasonable Accommodations under the PWFA
For an employee seeking an accommodation for pregnancy, that accommodation could come in many different forms. For example, more frequent breaks, working from home, light duty assignments, making existing facilities like bathrooms more accessible, schedule changes (part time work, paid or unpaid leave), changing parking locations, or temporarily suspending one more essential functions of the position.
The company and the employee are under an obligation to engage in the interactive process to discuss possible accommodations. If the company or the employee refuses to have a good faith discussion about how to accommodation the pregnancy limitation, then that party is not meeting the requirements of the Act. For South Carolina employees, it’s important to make sure that you speak with HR about the accommodations, document every request (preferably with a follow-up email for any in person conversations), and provide medical documentation where requested. It may be a hassle, but you don’t want to get to the end and give the company ammunition to claim that you didn’t comply with your own obligations to engage in the interactive process. When it comes to information the company, the new rules require that the employee must identify the known limitation (the physical or mental condition related to pregnancy or childbirth) and must let the employer know that the employee know that the needs an adjustment or change at work due to the limitation. Make your request specific and mention your pregnancy. Do so in writing (from your personal email) where possible.
Retaliation for Making a Request
The PWFA also prohibits retaliation and coercion. That means that the law prohibits a company from retaliating against or harassing an employee for exercising any rights under the PWFA.
The company is also prohibited from retaliating against a person for reporting or opposing any illegal acts under the PWFA, such as where an employee complains to management or HR that the company is violating the Act or engaging in pregnancy discrimination.
Takeaways for South Carolina Employees
For South Carolina employees, you should be aware of the new law and the protections that it provides. The PWFA works in conjunction with Title VII of the Civil Rights Act, which covers sex discrimination, and the Americans with Disabilities Act (ADA), which covers disabilities. And for employees who have worked at least 1,250 hours and been employed a year with a company that has at least 50 employees, then the Family and Medical Leave Act can provide intermittent or continuous medical leave, along with job protection for up to 12 weeks.
South Carolina also has a state-specific Pregnancy Accommodations Act that provides protection to SC employees, although as I’ve written about previously, the law is little used and doesn’t offer any better protection than federal law. (Read More Here: South Carolina’s Pregnancy Accommodations Act] In addition, state and federal law provides protection for employees who need to pump breast milk at work. [Read More Here: Can South Carolina Employees Pump Breast Milk at Work?]
As always, if you have any questions or have been harassed or discriminated against at work based on a pregnancy or recent childbirth, please reach out to office at (864) 233-4351 or via our Contact Page to provide additional information and a discussion of your situation.
