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Starting today, June 18, 2024, the Equal Employment Opportunity Commission (EEOC) will enforce new regulations under the Pregnant Workers Fairness Act (PWFA). With this in mind, employers should familiarize themselves with the EEOC’s final rule and interpretive guidance to better understand their obligations under the PWFA and how the EEOC will interpret and enforce the law in the future.

The PWFA, which became effective on June 27, 2023, was enacted to fill gaps left by the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA) by mandating reasonable accommodations for employees affected by pregnancy, childbirth, or related medical conditions. The PWFA specifically requires private and public employers with 15 or more employees to provide reasonable accommodations to employees and applicants with “known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause undue hardship on the operation of the employer’s business” regardless of whether the accommodations are provided to similarly situated employees.

A Broad Interpretation of “Known Limitations”

The final rule interprets the phrase “known” to mean communicated to the employer, and “limitations” to mean physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. In this regard, the regulations clarify that “related medical conditions” include not only new physical and mental conditions originating during pregnancy, but also pre-existing conditions exacerbated by pregnancy or childbirth (i.e., back pain aggravated by pregnancy).

The final rule also contains a broad definition of “pregnancy” and “childbirth” to include current pregnancy, past pregnancy, potential or intended pregnancy (which may include infertility, fertility treatment, and use of contraception). 

Unlike the ADA, the PWFA does not require that an employee’s medical condition substantially limit a major life activity or rise to a specific level of severity. Instead, the final rule notes that employees with modest, minor, or episodic conditions may appropriately request an accommodation (e.g., morning sickness).

Broad Scope of Covered Conditions

The final rule provides a non-exhaustive list of conditions that are, or may be, “related medical conditions,” and can give rise to a request for accommodation under the PWFA, including:  nausea or vomiting, frequent urination, gestational diabetes, preeclampsia, recovery from childbirth, lactation concerns, termination of pregnancy (such as miscarriage, stillbirth, or abortion), and anxiety, depression or psychosis during or after pregnancy.  The breadth of this list and the inclusion of abortion has resulted in litigation claiming that the EEOC has exceeded its authority.

It is important to mention that the PWFA also may apply to conditions related to menstruation and menopause, but the statute does not directly mention either.

Employees and Applicants may be “Qualified” even if they cannot Perform Essential Functions of their Job

Like the ADA, an employee is a “qualified employee” under the PWFA if they can perform the essential functions of the job with or without a reasonable accommodation. The PWFA takes this a step further by covering qualified employees who are unable to perform the essential functions of their job so long as:

  1. their inability to perform the essential functions is “temporary”;
  2. they could perform the essential functions “in the near future”; and
  3. the inability to perform the essential functions can be reasonably accommodated.

The final rule defines the term “temporary” as lasting for a limited time, and may extend beyond “in the near future,” which in turn, is generally defined as 40 weeks (i.e., the length of the pregnancy) from the start of the temporary suspension of an essential function. The final rule notes that employers must determine on a case-by-case basis whether the employee could perform the essential function(s) “in the near future” in situations other than a current pregnancy. As such, prepartum and postpartum conditions may require that employers suspend an essential job function(s) for more than 40 weeks.

The Interactive Process and Reasonable Accommodations

Tracking the ADA’s “interactive process,” the PWFA requires the employer and employee to engage in a timely, good faith, and interactive process to determine effective reasonable accommodations. However, an employer cannot impose an accommodation that has not been reached through the interactive process.

The final rule also encourages employers to promptly respond to requests for accommodations due to the temporary nature of pregnancy. In doing so, the EEOC notes, “most requests for accommodations under the PWFA can be provided quickly and typically will consist of nothing more than brief conversations or email exchanges.”

Employers Cannot Seek Documentation for Certain Requests

The EEOC emphasizes that when an employee (or the employee’s representative) asks for a reasonable accommodation, an employer should only ask for documentation when it is reasonable under the circumstances. The EEOC provides the following examples of when it is not reasonable for an employer to seek supporting documentation:

  1. when the employee’s need for an accommodation is obvious;
  2. when the employer already has sufficient information to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical condition [a limitation] and needs an adjustment or change at work due to the limitation;
  3. when the employee is pregnant and seeks one of the modifications listed below (“virtually all cases”) and employee provides “self-confirmation” (i.e., a simple statement that the employee has a limitation and the adjustment or change at work is needed due to the limitation);
  4. when the reasonable accommodation is related to the need to pump; and
  5. when the requested accommodation is available to employees seeking accommodations for non-PWFA purposes and are not required to submit documentation.

Moreover, all medical information obtained must be kept confidential and separate from the employee’s personnel file.

Modifications That Don’t Impose Undue Hardship in “Virtually All Cases”

The final rule identified four reasonable accommodations that would be found to be a reasonable accommodation when requested by a pregnant employee in “virtually all cases,” including:

  • additional restroom breaks, as needed;
  • food and drink breaks, as needed;
  • allowing an employee to carry or keep water near the work station and drink, as needed; and
  • allowing an employee to sit or stand, as needed.

Possible Reasonable Accommodations

The final rules provides specific examples of possible reasonable accommodations under the PWFA, including frequent breaks, sitting/standing, schedule changes, part-time work, reserved parking, light duty, modifying the work environment, job restructuring, temporarily suspending one or more essential functions, acquiring or modifying equipment, uniforms or devices, and adjusting or modifying examinations or policies.

Expanding on the PUMP Act

The final rule notes that the PWFA may require employers to provide additional accommodations related to lactation and pumping than what may be required under the Providing Urgent Maternal Protection for Nursing Mothers Act (PUMP Act). The PUMP Act generally requires that employers provide reasonable break time and space shielded from view and free from intrusion for nursing mothers to express breast milk. The final rule makes clear that the PWFA may require additional accommodations for nursing mothers including ensuring that the area for lactation is in close proximity to the employee’s usual work area, has electricity and appropriate seating, and is in close proximity to a sink, running water, and a refrigerator for storing milk.

Key Takeaways for Employers

  1. Review your current pregnancy accommodation policies and current processes to ensure compliance with the EEOC’s final regulations.  (Do not use the same forms that are used for ADA accommodation requests, as the type of information that an employer can seek under the ADA differs from the PWFA.)
  2. Train your supervisors and hiring managers, who are likely to receiv pregnancy-related accommodation requests from both applicants and employees, about how to respond to such requests.
  3. Respond to requests under the PWFA promptly.
  4. Consider unpaid leave as a last resort, as the PWFA makes clear that employers may only require an employee to take leave if there are no other reasonable accommodations that can be provided absent undue hardship.