Reminders for Implementing the Pregnant Workers Fairness Act

This is your friendly reminder to consider the Pregnant Workers Fairness Act (PWFA) before denying accommodations (including leave) to an employee who is pregnant or has recently given birth.

On June 27, 2023, the federal Pregnant Workers Fairness Act (PWFA) went into effect, providing additional protections for workers experiencing known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The Equal Employment Opportunity Commission’s (EEOC) final regulation to carry out the law went into effect on June 18, 2024. More information on the PWFA is available in our prior E-Alerts: PWFA Now in Effect and EEOC Final Rule on PWFA.

As employers continue to familiarize themselves with the Act and begin to come across PWFA accommodation requests, here are a few reminders to consider:

Consider the PWFA in Addition to PLO/OFLA/FMLA Leave

The PWFA itself does not contain a leave allowance for eligible employees. However, the EEOC’s guidance has indicated that time off for pregnancy, childbirth, and related medical conditions is considered a reasonable accommodation under the Act. Accordingly, employers should remember to consider leave under PWFA as an option when an employee either is not covered by the Oregon Family Leave Act (OFLA) or the federal Family and Medical Leave Act (FMLA) or who has exhausted their leave under OFLA/FMLA and Paid Leave Oregon (PLO).

Here are some examples of scenarios where an employee may be entitled to leave under the PWFA:

• An employee who works for a small employer with between 15 and 24 employees will not be covered by OFLA or FMLA. If the employee exhausts their 14 weeks of Paid Leave Oregon benefits before giving birth due a pregnancy disability, the employee will not have any protected leave available for parental leave but may still be entitled to additional pregnancy disability leave following the birth under the PWFA.

• An employee who has a difficult pregnancy may exhaust 12 weeks of leave under FMLA and OFLA’s pregnancy disability rules and then exhaust their 14 weeks of Paid Leave Oregon benefits. Should the employee have an ongoing need for leave if they are still recovering from childbirth, the employee may be entitled to additional unpaid leave under the PWFA.

• An employee who suffers a miscarriage or a stillbirth and is still recovering (mentally or physically) after exhausting their other leave entitlements may be afforded additional time off under the PFWA.

PWFA Only Affords Accommodations Relating to the Limitations of the Employee

Although the PWFA requires an employer to provide reasonable accommodations for an employee who has a known limitation related to, affected by, or arising out of pregnancy or related medical conditions, the EEOC has made clear that only those medical conditions “relating to the pregnancy or childbirth of the specific employee in question” are protected. Therefore, employees seeking PWFA accommodation due to their newborn’s condition—and not their own condition—are not entitled to accommodation unless they are eligible for leave under OFLA, FMLA, or Paid Leave Oregon. For example, an employee who is seeking additional time off because their infant is refusing to bottle feed will not be entitled to an accommodation under the PWFA but may be eligible for OFLA sick child leave. However, an employee experiencing their own condition that makes pumping difficult may still be entitled to an accommodation under the PWFA.

Employers should ensure that supervisors, managers, and HR staff maintain an understanding of these nuances to ensure compliance with the PWFA.

For questions about the Pregnant Workers Fairness Act or for any other workplace compliance matters, contact Amy Angel at 503-276-2195 or [email protected].