by In September, several employers were taken to federal court with allegations that they failed to reasonably accommodate employees with pregnancy-related conditions. The cases are in the earliest stage of litigation and present only the government’s side of the disputed conduct. The lawsuits are not a surprise since many employers have discovered differences between their accommodation obligations under the Pregnant Workers Fairness Act (PWFA) and those under the more familiar Americans with Disabilities Act (ADA). The timing of the suits were also predictable since the Equal Employment Opportunity Commission (EEOC) has ramped up its PWFA enforcement activities since the Act’s final regulations became effective on June 18, 2024, a year after the law itself became effective.
Even at this early stage of litigation, employers may find the alleged employer practices in the recent suits to mirror their own practices in similar situations. Reviewing the allegations provide employers with the opportunity to reflect on whether their current practices require an overhaul to address the unique features of PWFA obligations.
Example: EEOC v. Polaris Industries, Inc. (Filed in the U.S. District Court for the Northern District of Alabama)
The Employer: Polaris Industries, Inc. is a public company headquartered in Minnesota with an estimated 16,200 employees across Minnesota, Iowa, Wisconsin, Alabama, Washington, and other states. The company accounts for an estimated 28% of total industry revenue in the ATV manufacturing industry. Polaris is also active in the manufacture of motorcycles, golf carts, and snowmobiles.
The Alleged Actions of the Employer: The pending lawsuit claims that Polaris refused to excuse an employee’s absences for pregnancy-related conditions and medical appointments and required her to work mandatory overtime despite knowing that her physician had restricted her from working more than forty hours per week during her pregnancy. According to the complaint, Polaris has an attendance plan that assigns points for unapproved absences. It is claimed that the company assessed attendance points against the employee for what should have been protected absences. Polaris warned that she would be terminated if she acquired another point under the plan. As a result, the employee resigned to avoid termination and protect her pregnancy.
This case highlights several policies and practices for review by other employers:
Is a PWFA-compliant accommodation process in place? The PWFA requires employers to engage in an interactive process with the employee to determine whether the requested accommodation (or an alternative accommodation) is feasible. An important feature of the PWFA is that, while the employer is not required to grant the exact accommodation requested by the employee, it is prohibited from forcing an accommodation such as a leave of absence on the employee. The process is similar to that expected in complying with the ADA but applies different standards under PWFA law and regulations.
Have attendance policies and practices been adapted for PWFA compliance? A request for an exception to an attendance policy or practice due to pregnancy-related limitations should trigger the interactive process. The EEOC has published guidance for employers on PWFA compliance, including accommodation recommendations regarding increased breaks and exceptions to attendance policies. For details on PWFA compliance, see https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
Have managers and the human resources team been trained on the PWFA and how compliance differs from ADA compliance? These staff members are the most likely to receive inquiries about workplace adjustments from employees. They should be aware of the PWFA’s details and the necessary steps to accommodate an employee impacted by pregnancy, childbirth, or related medical conditions.
At a minimum, key staff members should be informed that the PWFA can protect employees who are not currently pregnant. EEOC rules state that employees with known limitations due to many medical conditions related to pregnancy are entitled to consideration for reasonable accommodation. Conditions include:
- Current, past, and potential pregnancy
- Lactation (including breastfeeding and pumping)
- Use of contraception
- Menstruation
- Infertility and fertility treatments
- Endometriosis
- Miscarriage
The training should also help key staff members recognize the differences between the familiar ADA accommodation obligations and the new PWFA obligations. The differences between ADA compliance and PWFA compliance may challenge even experienced leaders. They may be surprised to learn that suspending an essential function can be a reasonable accommodation under the PWFA. Another difference is that the PWFA, unlike the ADA, does not require the employee to meet a threshold for the severity of the physical or medical condition to qualify for an accommodation based on the relevant condition.
The ADA and the PWFA differ even in terms of the ability of employers to request medical documentation from the employee. The PWFA says employers cannot seek documentation when the physical or medical condition and accommodation are “obvious” or the employer already has sufficient information to determine whether the employee has a condition related to pregnancy, childbirth, or related medical conditions.
The pending lawsuits may provide clues on what current practices or processes create risk when applied to PWFA accommodation requests. The Polaris case is only one of the pending lawsuits, and the human resources team may find it useful to monitor both the recent and future PWFA lawsuits brought by the EEOC to better understand the agency’s enforcement focus. The EEOC regularly reports its court activity on its website, http://www.eeoc.gov.
