On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued a press release announcing that its Pregnant Workers Fairness Act (PWFA) regulations would be published in the Code of Federal Regulations in April and become effective in June. Starting last fall, the EEOC has jumped full into the enforcement of the PWFA regulations with multiple lawsuits.
Manufacturer Sued for Denying Accommodations
One of the EEOC’s PWFA lawsuits involves a manufacturing company in the Northern District of Alabama. According to the EEOC, the manufacturer refused to excuse an employee’s absence for pregnancy-related conditions and medical appointments and required her to work mandatory overtime while pregnant. Apparently, the employee had been medically restricted from working more than 40 hours per week during her pregnancy. She was, however, assessed attendance points for pregnancy-related absences and was specifically told she would be terminated if she had additional lost time.
According to Marsha Rucker, regional attorney for the EEOC’s Birmingham district, “It is also illegal under the PWFA to take adverse action against an employee requesting a reasonable accommodation related to pregnancy, childbirth or related medical conditions of that employee. The EEOC will diligently pursue remedies for individuals whose employers denied them the protections that the PWFA offers.”
The PWFA provides for a wide array of accommodations for persons who are pregnant. In this case, what might be considered “basic” pregnancy accommodations—such as extra breaks, time to sit down, water, some lifting restrictions, and similar items—are unlikely, under the EEOC’s interpretation of the regulations, to require medical certification. The PWFA specifically indicates that things employers “might anticipate” to be standard requirements for a pregnant person should be provided without undue delay or burden, which includes the need for medical certification. Limitation of work hours is something that may fall into the medical certification category, depending on the circumstances—although in this instance, medical certification was provided, limiting the employee to 40 hours per week.
PWFA and PUMP Act Violations
In the Northern District of Oklahoma, the EEOC sued a specialty medical practice for failing to allow a pregnant medical assistant to sit, take breaks, or work part-time. The request for part-time work had been supported by medical certification from the pregnant person’s physician. The medical provider had stated that part-time work was needed to protect this person’s “health and safety during the final trimester of her high-risk pregnancy.”
The EEOC further alleges that the employer prospectively violated the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act by indicating that the employee wouldn’t have guaranteed breaks to express breast milk upon returning to work. When she stated that she wouldn’t return to work without a guarantee of breaks, the EEOC alleges the employer terminated her.
This case involves not only the regulations for the PWFA but also the PUMP Act, which falls within the Department of Labor’s (DOL) wage and hour requirements. It guarantees lactating employees the right to uninterrupted, sanitary, and private spaces in which to pump breast milk for a period of 12 months following the birth of a child.
Pregnant Employee Denied Transfer
In Indiana, another manufacturing group was subject to a federal lawsuit filed by the EEOC, claiming a PWFA violation. The EEOC alleges the company denied accommodation to a pregnant employee, which included a request “to transfer to a role that did not require lying on her stomach.” The EEOC alleges this ultimately resulted in a constructive discharge (forced resignation) when the employee was eight months pregnant.
It’s important to note this lawsuit also alleges the company “unlawfully required medical documentation.” As noted above, the PWFA differs substantially from the Americans with Disabilities Act (ADA) by restricting when an employer can request medical certification for accommodations, especially when it’s unclear if the need is pregnancy-related.
Another recent claim involved a small business that terminated an employee who was on pregnancy leave even as it hired to fill her position.
Public Conciliation
The EEOC announced on September 11, 2024, that it had entered into the first public conciliation regarding a PWFA violation. The case involved a former employee of a Florida pest control company who alleged the company terminated her because of her request to attend monthly medical appointments for her pregnancy.
The conciliation sets forth that the company will provide $47,480 in damages to the former employee, will appoint an EEO coordinator, will revise its employment policies, will provide training to management as well as non-management employees about compliance, and will provide quarterly reports (presumably to the EEOC) for accommodation requests and complaints of discrimination resulting in additional oversight by the agency for a period of time.
Big Picture
In less than three months, the EEOC has filed four PWFA lawsuits and entered into a public conciliation, clearly signaling its intention to assertively enforce the terms of the Act, retroactively and prospectively.
You should take a variety of steps to comply with the PWFA. This includes making sure you have clear lines of communication with employees. Policies may need to be streamlined to allow for accommodation without the need for medical certification (in pregnancy-related situations), and training should occur for both frontline managers and personnel who have the responsibility to provide for or enforce accommodation requirements.
Note that none of the listed cases involves someone who wasn’t pregnant or a condition that may have been considered to “linger” after a pregnancy. All of these issues involved a person who was currently or recently pregnant, so it’s unclear how the EEOC will approach issues that may be more complex, such as infertility treatments or issues that occur postpartum.
Jo Ellen Whitney is an attorney with Dentons Davis Brown in Des Moines. You can reach her at joellen.whitney@dentons.com.