The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023 and requires that employers with 15 or more employees provide reasonable accommodations to qualified employees and applicants with known limitations stemming from, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that providing the accommodation would cause an undue hardship. On April 19, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final rule and regulations implementing the PWFA. The EEOC's final rule and accompanying interpretative guidance are sweeping and provide employers with insights into key PWFA compliance issues, such as who is covered, the types of limitations and conditions covered, and how individuals can request reasonable accommodations. Specifically, employers should be aware of the following elements of the final regulations.
1. Reliance on ADA Concepts
Employers familiar with the Americans with Disabilities Act (ADA) will find many parallels in the PWFA's regulations. Terms like "undue hardship," "essential job functions," "interactive process," "reasonable accommodation," and "individualized assessment" are taken from the ADA. Employers can and should leverage their ADA interactive process procedures for addressing pregnancy-related conditions, while being careful to take into account the unique aspects of compliance with the PWFA regulations.
2. Temporary Suspension of a Job's Essential Functions
In a significant departure from ADA principles, the regulations provide that an applicant or employee can still be deemed "qualified" for a position even if they currently cannot perform certain essential job functions. This is contingent upon the condition being temporary, the expectation that the employee will regain capacity "in the near future," and the employer being able to reasonably accommodate the situation without an undue hardship. "In the near future" is defined by the regulations as a period of 40 weeks from the time when an employee's inability to perform an essential function is identified. Notably, this time frame is applicable to each essential job function individually, potentially entitling covered employees to multiple 40-week periods that may not run concurrently. For example, an employee's pregnancy may trigger a 40-week period wherein the employee cannot perform one essential job function, and then a postpartum pregnancy-related medical condition may trigger another 40-week period for another essential job function the employee is unable to perform.
3. Expanded Definitions
The EEOC enumerates a non-exhaustive list of medical conditions pertaining to pregnancy and childbirth, including current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and having or choosing not to have an abortion. Employers are encouraged to recognize these conditions as potential triggers for the accommodations required.
4. Reasonable Accommodations and "Predictable Assessments"
The regulations provide an extensive catalog of possible reasonable accommodations, including: (i) frequent breaks; (ii) sitting or standing as needed; (iii) schedule changes, part-time work, and paid and unpaid leave; (iv) telework; (v) parking; (vi) light duty; (vii) making existing facilities accessible or modifying the work environment; (viii) job restructuring; (ix) temporarily suspending one or more essential functions; (x) acquiring or modifying equipment, uniforms, or devices; and (xi) adjusting or modifying examinations or policies. The regulations also identified four types of accommodations, due to "predictable assessments," that generally should be considered reasonable accommodations that do not impose an undue hardship: (i) carrying or keeping water near and drinking as needed; (ii) allowing additional restroom breaks; (iii) allowing sitting or standing as needed; and (iv) allowing breaks to eat and drink as needed.
The EEOC also provides numerous example scenarios that generally favor providing employees with reasonable accommodations. In one example, a pregnant employee requests placement in her employer's light duty program because her delivery driving job routinely requires her to lift 30-40 pounds, but because of the pregnancy, her healthcare provider told her that she should not lift more than 20 pounds. The regulations indicate that the employer must place the employee in an open position in the light duty program, even though that program is explicitly reserved only for employees recovering from work-related injuries.
In another example, a pregnant social worker asks her supervisor if she can switch to 100% telework because she is feeling more fatigue and would be able to lie down and take rests between appointments. The EEOC concludes that, assuming her appointments can be completed virtually, the request must be granted because the pregnant social worker can perform her essential functions with the reasonable accommodation of working from home. Furthermore, the EEOC states that if certain appointments cannot be done virtually, then the required accommodation may be a few days of telework, plus other accommodations giving the social worker time to rest—such as assigning her in-person appointments at times when traffic is light, so that they are easy to get to, or setting up in-person appointments with breaks in between.
This latter example demonstrates the far-reaching possibilities of potential obligations and is critical for employers to keep in mind. Specifically, the EEOC's final regulations suggest that employers must go so far as to allow remote work when it is generally forbidden and, if in-person work is an essential function, to temporarily suspend it. In the above scenario, if an undue hardship cannot be established, that could mean shifting appointments to a remote format, even if the client or customer is better served in person, or shifting the burdens of in-person work to other, non-pregnant employees for up to 40 weeks.
5. Supporting Documentation
Under the final regulations, employers cannot request supporting documentation for certain requested pregnancy accommodations:
- when "the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation), and the adjustment or change at work needed due to the limitation are obvious" and the employee self-attests;
- when the employee/applicant has provided the employer with enough information to substantiate the known limitation and need for an accommodation;
- if the accommodation is one of the four listed as a "predictable assessment" and the employee self-attests;
- if the accommodation is related to lactation or pumping and the employee/applicant self-attests; or
- when the requested accommodation is available to employees without known limitations under the PWFA pursuant to the employer's policies or practices without submitting supporting documentation.
When none of the above circumstances apply, the regulations limit documentation to the minimum that is sufficient to (i) confirm the physical or mental condition; (ii) confirm that it is related to, affected by, or arises out of pregnancy, childbirth, or related medical conditions; and (iii) describe the adjustment or change at work required. Employers may ask for the expected duration of the requested modification.
Next Steps for Employers
Employers should update their accommodation policies to ensure that they comply with the new obligations of the PWFA's final regulations, including ensuring that supervisors understand the broad scope of the obligations and the need to properly address accommodation requests. If you or your organization has any questions about the EEOC's final PWFA regulations, or how to comply while reducing legal liability and reputational harm, please contact the authors of this article or any attorney in Venable's Labor and Employment Group.