The Pregnant Workers Fairness Act (PWFA) was enacted in 2023 to protect pregnant employees from workplace discrimination and ensure they receive reasonable accommodations in the workplace. On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued its final rule and interpretative guidance implementing the PWFA and reflecting the agency’s expansive interpretation of the new law. The EEOC’s final rule takes effect on June 18, 2024. This article discusses several key provisions of the 400-plus page final rule.
Expansive Definition of Pregnancy-Related Conditions
The final rule includes an expansive interpretation of “pregnancy, childbirth, or related medical conditions” that are protected and require employers to provide reasonable accommodations. According to the EEOC, the PWFA applies to current, past, and potential pregnancy; lactation and conditions related to lactation; postpartum depression, use of contraception; menstruation; treatments related to infertility and fertility; endometriosis; stillbirth; miscarriage; and abortion, among other medical conditions. The inclusion of abortion is currently the subject of a legal challenge, but no stay has been issued to date, and the expansive definition applies. The final rule also clarifies that the phrase “related medical conditions” in the PWFA includes preexisting conditions that are exacerbated by childbirth or pregnancy.
Examples of Reasonable Accommodations
The final rule clarifies that the PWFA requires reasonable accommodations (absent undue hardship) for pregnancy-related medical conditions and limitations even if the condition or limitation does not arise to the level of a “disability” under the ADA. The final rule includes the following examples of reasonable accommodations:
- Making existing facilities readily accessible;
- Job restructuring;
- Part-time or modified work schedules;
- Reassignment to a vacant position;
- Breaks for use of the restroom, drinking, eating, and/or resting;
- Acquisition or modification of equipment, uniforms, or devices;
- Modifying the work environment;
- Providing seating for jobs that require standing and allowing standing for jobs that require sitting;
- Leave;
- Light duty or modified work;
- Telework, remote work, or change of work site; and
- Providing a reserved parking space if the employee is otherwise entitled to use employer-provided parking.
Employers may also be required to temporarily suspend an essential job function as a reasonable accommodation if the employee will be able to perform the essential function “in the near future.” According to the EEOC’s final rule, “in the near future” is presumed to mean within 40 weeks for an employee who is pregnant. Whether an employee who is not pregnant can perform an essential function “in the near future” must be determined on a case-by-case basis.
De Facto Reasonable Accommodations
The final rule identifies four modifications for pregnant employees that will, “in virtually all cases,” be deemed reasonable accommodations that do not impose undue hardship:
- Allowing an employee to carry or keep water near and drink, as needed;
- Allowing an employee to take additional restroom breaks, as needed;
- Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
- Allowing an employee to take breaks to eat and drink, as needed.
The final rule refers to these de facto reasonable accommodations as “predictable assessments.”
Limitations on Requesting Documentation
The final rule provides that employers may request medical documentation substantiating the need for a requested accommodation only when it is reasonable under the circumstances to determine whether the employee has a qualifying condition and needs an adjustment or change at work due to the limitation. The rule provides five instances when employers are not allowed to request medical documentation:
- When the limitation and need for a reasonable accommodation is obvious and the employee self-confirms the need for accommodation;
- When the employer already has sufficient information to determine the employee has a covered condition and requires a reasonable accommodation;
- When the requested accommodation is one of the four “predictable assessment” accommodations discussed above;
- When the reasonable accommodation is related to a time and/or place to express milk/breastfeed at work, other modifications related to milk expression at work, or a time to breastfeed during work hours; and
- 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.
Unlawful Employment Practices
The EEOC identifies five unlawful employment practices under the PWFA in its final rule:
- Denying equal employment opportunities;
- Failing to provide reasonable accommodations—which includes unnecessary delay in providing a reasonable accommodation;
- Requiring an applicant or employee to accept an accommodation;
- Mandating leave when other effective reasonable accommodations are available allowing the person to remain working; and
- Disciplining or taking other adverse employment action against an employee for requesting or using a reasonable accommodation.
The final rule also includes an expansive anti-retaliation provision, under which employers may be liable for retaliation for, among other things, requiring medical documentation that is not reasonable under the circumstances or seeking additional supporting documentation after an employee has already provided sufficient documentation.
Key Takeaways for Employers
- Employers should review and update their workplace policies, procedures, and manager training to ensure they are in compliance with the EEOC’s final rule and all Pregnant Worker Fairness Act requirements.
- Employers must also comply with state-law restrictions and requirements regarding pregnant workers. Many states impose similar or stricter requirements than those set forth in the EEOC’s final rule, such as Oregon’s and Washington’s laws requiring employers to provide reasonable accommodations during pregnancy and post-childbirth. Note the PWFA definition of “pregnancy-related” is much more expansive than existing state law definitions. There is some likelihood that the state definitions will be revised in the coming years to match the PWFA definition.
- Employers should consider revising their ADA accommodation request paperwork to include PWFA accommodation requests and should consider using a process similar to the ADA process for determining reasonable accommodations.
Employers should take special note of the expansive definitions applicable to “pregnancy-related,” including extension to infertility treatments, menstruation, and potential pregnancy. For example, a worker with severe menstrual cramps or similar menstruation-related physical or mental health issues may request an additional day or two (or longer) off each month during menstruation. The PWFA does not require this leave to be paid leave but will allow the worker to use available paid leave, including sick leave, state-mandated paid leave, or other available leave.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
