By: Laura M. Raisty

The Pregnant Workers Fairness Act (“PWFA”), which has been in effect since June 2023, is intended to safeguard the rights of pregnant employees in the workplace. Among its protections is the requirement that employers provide reasonable accommodations to ensure pregnant employees can continue working safely and effectively, unless doing so would cause the employer an undue hardship.

On April 15, 2024, the Equal Employment Opportunity Commission (“EEOC”) published a lengthy final rule and interpretive guidance on the implementation of the PWFA. The final rule was published in the Federal Register on April 19, 2024, and will take effect 60 days later, on June 18, 2024. This article is intended to provide an overview of some key provisions on the EEOC’s final rule and interpretative guidance.

Broad Definition of Pregnancy, Childbirth, or Related Medical Conditions

The PWFA mandates that employers (1) cannot discriminate against employees on the basis of  “pregnancy, childbirth, or related medical conditions” and (2) provide reasonable accommodations to a worker’s known limitations related to “pregnancy, childbirth, or related medical conditions.”  

Pursuant to the final rule, included among “pregnancy, childbirth, or related medical conditions” are: 

  • current pregnancy, past pregnancy, potential pregnancy
  • lactation (including breastfeeding and pumping)
  • use of birth control
  • menstruation
  • infertility and fertility treatments
  • endometriosis
  • miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.

“Related medical conditions” not only includes conditions that originate during pregnancy, but also includes pre-existing conditions that may be or have been exacerbated by pregnancy or childbirth.

Reasonable Accommodation and Essential Functions of the Job

The final rule elaborates on what may constitute a reasonable accommodation for  employees covered by the PWFA.  

Importantly, the PWFA’s framework for evaluating requests for reasonable accommodation is different from the framework for evaluating such requests under the Americans With Disabilities Act (“ADA”). Under the ADA, an employer does not have to reasonably accommodate an employee who is unable to perform the essential functions of their job, with or without reasonable accommodation. 

Pursuant to the EEOC’s’ final rule on the PWFA, the fact that a worker is seeking a temporary suspension of an essential function does not disqualify them from seeking a reasonable accommodation under the PWFA as long as the worker is or is expected to perform the essential duties in the near future and the employer can reasonably accommodate the inability to perform that function (1). Such a worker will be considered “qualified” for a reasonable accommodation under the PWFA. In contrast, if the temporary suspension of an essential job function cannot be reasonably accommodated, the employee is not “qualified.” Likewise, if the temporary suspension of an essential job function causes the employer an undue hardship, the employer need not provide an accommodation that includes suspension of the essential job function.

The final rule also clarifies that there is no threshold of severity required for the physical or mental condition leading the worker to seek an accommodation. The condition can be a modest, minor, or an episodic problem or impediment.

Finally, when an employee returns to work from pregnancy or childbirth, the employer must reassess whether it can reasonably accommodate the employee’s inability to perform the essential functions, regardless of whether the provider provided the same or a different accommodation before or during the employee’s pregnancy.

Reasonable Accommodation Requests and the Interactive Process

The PWFA’s definitions of reasonable accommodation, interactive process, and undue hardship parallel the definition of those terms under the ADA, with certain qualifications.  

For example, under both the PWFA and the ADA, the employee can request a reasonable accommodation verbally or in writing in plain language and the request can come from the employee, an applicant, or their representative. The request need only identify the employee’s limitation and their need for an accommodation – that is all that is required to trigger the employer’s obligation to engage in the interactive process. Under the PWFA, however, a “union representative” is included among those who may seek reasonable accommodation on an employee’s behalf.

As with the ADA, the final rule encourages employers to respond expeditiously to a request for reasonable accommodation and act promptly to provide the reasonable accommodation.  However, due to the nature or sudden onset of a pregnancy, childbirth, or related medical condition, the EEOC describes a “best practice” as providing an interim reasonable accommodation that meets the employee’s needs while the interactive process is conducted.  

Examples of Reasonable Accommodations

At the direction of Congress, the EEOC provides a number of detailed examples of potential reasonable accommodations under the PWFA, including:

  • frequent breaks
  • sitting/standing
  • schedule changes, part-time work, and paid and unpaid leave
  • telework
  • reserved parking
  • light duty
  • making existing facilities accessible or modifying the work environment
  • job restructuring
  • temporarily suspending one or more essential functions of the job
  • acquiring or modifying equipment, uniforms, or devices
  • adjusting or modifying examination or policies.  

Importantly, employers must keep in mind that they are prohibited from requiring pregnant employees to take leave if other reasonable accommodations can be provided instead.

Moreover, the final rule establishes that four common requests for accommodation are de facto reasonable, which the rule refers to as “predicable assessment” conditions. They are: (1) allowing an employee or applicant to carry water and drink as needed during the workday; (2) allowing an employee or applicant additional restroom breaks; (3) allowing an employee or applicant whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee or applicant breaks as needed to eat and drink.

According to the EEOC, these predictable assessment requests seek “simple and straightforward” modifications so they will “virtually always” be reasonable accommodations that do not impose an undue hardship.

Can an Employer Request Supporting Documentation?

According to the EEOC, determining whether a limitation or physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions will most likely be a straightforward determination that can be accomplished through a conversation between the employer and the employee as part of the interactive process and without the need for the employee to obtain supporting documentation or verification.  

Instead, an employer may obtain supporting documents for the accommodation request only if it is reasonable to do so in deciding whether to grant the accommodation. The final rule limits “reasonable documentation” to documentation that describes or confirms: (1) the physical or mental condition; (2) that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3) that a change or adjustment at work is needed for that reason. Employers cannot require that supporting documents be submitted in a specific format or form and any supporting medical information must be kept confidential. Requests for further information may violate the PWFA’s anti-retaliation provision.

The final rule also provides several examples of circumstances when seeking supporting documentation is unreasonable under the circumstances and therefore prohibited: (1) when the known limitation and need for reasonable accommodations are obvious; (2) when the employer already has sufficient information to substantiate a known limitation and that a change or adjustment at work is needed; (3) the request is for one of the “predictable assessment” accommodations, (4) the request is for a lactation or pumping accommodation, or (5) other employees without known limitations receive the same modification without providing supporting documentation.  In these cases, the employer can seek only a supporting self-attestation from the employee.

Conclusion

Navigating these new regulations promulgated by the EEOC under the PWFA regulations is essential for employers to ensure compliance and for employees who are pregnant, have birthed a child, or have a related medical condition to ensure awareness of their rights. With the rule scheduled to take effect on June 18, 2024, employers are well-advised to review their handbooks, policies, and current accommodation processes now to ensure compliance.

Employers and employees with questions about these regulations are encouraged to contact an employment attorney at Kenney & Sams.

(1) While the PWFA itself does not define “temporary” or “in the near future,” the final rule defines temporary as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’”  In turn, the final rule defines “in the near future” as “generally forty weeks from the start of the temporary suspension of an essential function.”

*****

This alert is for informational purposes only and may be considered advertising. It does not constitute the rendering of legal, tax, or professional advice or services.  You should seek specific detailed legal advice prior to taking any definitive actions.