Spike in Pregnant Workers Fairness Act lawsuits alarms employers

In the wake of a surge in Equal Employment Opportunity Commission lawsuits accusing companies of violating the Pregnant Workers Fairness Act, employers should be prepared to accommodate reasonable requests by workers, experts say.

Legal and industry experts stress that having proper knowledge of the law’s broad scope and establishing good practices for discussing reasonable accommodations with pregnant workers are the best ways to address the risk of litigation.

“This is a growing exposure that employers need to be very mindful of. Some carriers we work with regularly have noted that this is the single largest increase in new claims activity they’ve seen in the last few years,” said Kelly Thoerig, Richmond, Virginia-based managing director of employment practices liability and wage and hour coverage leader at Marsh.

The PWFA was enacted in June 2023 to fill gaps in the Americans with Disabilities Act of 1990. Under the law, private companies with 15 or more employees must be willing, absent undue hardship, to make reasonable accommodations for workers whose capabilities are limited by conditions associated with pregnancy and childbirth, including conditions related to in vitro fertilization treatment.

The PWFA differs from the ADA by limiting how much and the type of medical information a company can seek from an employee after an accommodation request is made and by providing examples of accommodations that would generally be considered reasonable, said Allison B. Gotfried, a New York-based employment attorney at Venable LLP.

“It also says companies may have to temporarily suspend an essential job function as a reasonable accommodation, which is not the case under the ADA,” she said.

Affected workers have been quick to inform the EEOC of alleged violations of the law. The agency’s general counsel reported that in the 11 months following the law going into effect, the agency received 1,869 charges from workers complaining their employer failed to provide them with reasonable accommodations.

Between Sept. 10 and Oct. 11, the EEOC announced the filing of four federal lawsuits against companies over alleged PWFA violations.

“Doing all of this in about a month speaks to how aggressively the EEOC is going to be in its enforcement of the PWFA,” said Delaney M. Busch, an employment attorney in Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC’s Boston office.

Ms. Busch added that EEOC’s enforcement of the PWFA will have a “significant impact on the employment law landscape, as well as companies’ accommodation policies and practices.”

Employers should be mindful of how they handle and respond to PWFA accommodation requests. “That’s going to be critical for companies going forward,” Ms. Busch said.

To address the risk, companies should ensure that individuals responsible for handling accommodation requests are sufficiently trained to recognize such requests and engage in the interactive process. A request subject to the PWFA doesn’t necessarily have to be in writing or in a particular form; it might be verbal, said Joni Mason, New York-based senior vice president of national executive and professional risk solutions claims at USI Insurance Services LLC.

Continued enforcement momentum by the EEOC could prompt underwriters to ask more targeted questions to companies about how they handle PWFA accommodation requests and whether management has received training on how to recognize and address such requests, Ms. Mason said.

EEOC lawsuits alleging violations of the PWFA are most likely to trigger employment practices liability insurance policies, which provide coverage for lawsuits brought by existing and potential employees. Full coverage for settlements will depend on whether a policy has exclusions that may apply to certain PWFA accommodation claims, such as an exclusion for claims regarding failure to provide rest breaks, said Mary M. Gardner, a Washington-based partner at Venable.