Key Takeaways

• The Pregnant Workers Fairness Act (PWFA) requires covered employers to provide reasonable accommodations to qualified employees and applicants with known limitations related to, affected by or arising out of pregnancy, childbirth or related medical conditions, absent undue hardship.
• The Equal Employment Opportunity Commission’s (EEOC) final rule clarifies an employer’s obligation to provide reasonable accommodations under the PWFA, the types of medical conditions covered and how individuals can request accommodations.
• Employers should carefully review the EEOC’s final rule and their accommodation policies to consider whether changes are necessary.

Background

On April 19, 2024, the EEOC published in the Federal Register its 125-page final rule implementing the PWFA. The final rule will take effect on June 18, 2024.

Before the PWFA went into effect in June 2023, employees were limited in their ability to obtain pregnancy-related accommodations under federal law. Under the Pregnancy Discrimination Act of 1978, employees affected by pregnancy, childbirth or related medical conditions are entitled to reasonable accommodations only if they can show their employer provided accommodations to others “similar in their ability or inability to work.” Moreover, under the Americans with Disabilities Act of 1990 (the ADA), employers are required to accommodate pregnant employees’ medical conditions only if they constitute a “disability”; in other words, the employee’s impairment must substantially limit a major life activity.

The PWFA fills the gaps and requires covered employers to provide reasonable accommodations to qualified employees and applicants with known limitations related to, affected by or arising out of pregnancy, childbirth or related medical conditions, absent undue hardship. The requirements may apply even if the accommodations are not available to others or the medical condition does not rise to the level of a disability under the ADA.

Who is covered?

The PWFA applies to private employers and public-sector employers (state and local governments) with 15 or more employees, unions, employment agencies and the federal government. It offers protection to qualified employees and applicants who work (or have applied to work) for a covered employer. Throughout this alert, the term “employee” should be understood to include “applicant” where relevant.

Employees are “qualified” to seek PWFA accommodations if they can perform the essential functions of the job with or without reasonable accommodation. Notably, under the PWFA, employees can still be qualified if they cannot perform one or more essential functions of a job if (1) the inability to perform the essential function(s) “is for a temporary period,” (2) the essential function(s) could be performed “in the near future” and (3) the inability to perform the essential function(s) can be reasonably accommodated. Under the final rule, “temporary” means a limited time, not permanent, and may extend beyond “in the near future.” For a current pregnancy, in the near future is generally 40 weeks (which tracks the typical length of a full-term pregnancy). The EEOC did not define in the near future for other conditions, except to note that it does not mean indefinitely, leaving this to be determined on a case-by-case basis.

What limitations and medical conditions are covered?

Qualified employees are covered by the PWFA if they have a “known limitation” related to pregnancy, childbirth or related medical conditions. The PWFA defines known limitation as a physical or mental condition related to, affected by or arising out of pregnancy, childbirth or related medical conditions. In its final rule, the EEOC confirmed that the limitation can be modest, minor or episodic, and there is no requirement that it rise to a specific severity threshold. The EEOC also clarified that a limitation is “known” if the employee or the employee’s representative (which could include a family member, friend, union representative or healthcare provider) has communicated it to the employer. The communication can be oral or written, and there are no required magic words or format.

The PWFA does not define the “pregnancy, childbirth or related medical conditions” that can give rise to an accommodation request under the PWFA. In its final rule, the EEOC defined the phrase broadly to include current pregnancy, past pregnancy, infertility and fertility treatments, use of contraception, lactation (including breastfeeding, pumping and issues related to lactation), menstruation, postpartum depression and anxiety, gestational diabetes, high blood pressure, carpel tunnel syndrome, preeclampsia, incontinence, endometriosis, miscarriage, stillbirth, and abortion, among other conditions.

Recognizing that the abortion accommodations would be controversial, the EEOC dedicated dozens of pages in the final rule to addressing comments received on this topic. The EEOC made clear that it is not requiring employers to fund abortions. Instead, the EEOC noted that abortion accommodations will typically include allowing time off for the procedure and recovery. The EEOC also stated that it would consider religious objections to providing abortion and other accommodations on a case-by-case basis.

What is a reasonable accommodation, and how can employees request one?

The final rule specifies four accommodations that will be reasonable in “virtually all cases” and typically do not impose an undue hardship. These “predictable assessments” are (1) additional restroom breaks, (2) food/drink breaks, (3) allowing water and other drinks to be kept nearby, and (4) allowing sitting or standing as necessary.

Additionally, the final rule includes a long list of other potential accommodations employers should consider, including remote work or telework; providing a reserved parking space; light duty; making existing facilities accessible or modifying the work environment; job restructuring; schedule changes; part-time work; time off for healthcare appointments; reassignment to a vacant position; temporarily suspending one or more essential functions; acquiring or modifying equipment, uniforms or devices; and paid or unpaid leave. The EEOC clarified, however, that leave should be an accommodation of last resort if there are no other reasonable accommodations that can be provided absent undue hardship – unless, of course, the employee requests leave.

This list is not exhaustive. Employers must work with the employee during the interactive process to identify the adjustment or change at work that is needed due to the employee’s limitations and potential reasonable accommodations. The EEOC clarified that – just like communications informing an employer of a limitation – this should be a “simple process,” and the employee does not have to use any specific format or specific words. The employee or their representative need only communicate that they need an adjustment or change at work due to their known limitation in order to trigger the employer’s obligation to engage in the interactive process. The EEOC also made clear that employers should not delay processing an accommodation request because the employee spoke to the “wrong” person. Under the final rule, employers can avoid an assessment of damages in failure to accommodate claims under the PWFA if they demonstrate good-faith efforts, in consultation with the employee, to identify and make a reasonable accommodation.

What documentation can employers seek?

While the PWFA allows employers to seek supporting documentation from employees related to the necessity of the accommodation, the final rule says that the request must be reasonable under the circumstances for the employer to determine whether the employee has a qualifying condition and needs an adjustment or change at work due to the limitation. The final rule indicates that employers should not request documentation if the known limitation and need for a reasonable accommodation are obvious (e.g., a pregnant employee needs a bigger uniform), the employer already knows about the limitation and need for a reasonable accommodation (e.g., an employer cannot require new documentation each time a pregnant employee has morning sickness), the documentation concerns the need to pump or nurse during work hours, the request is for one of the four “predictable assessments” listed above, or the employer would not normally ask for documentation in that situation.

What constitutes an undue hardship?

Employers can only deny accommodation requests if they would impose an undue hardship on business operations. “Undue hardship” generally means significant difficulty or expense for the operation of the employer’s business. The factors to be considered when determining whether undue hardship exists are the same as under the ADA and include the nature and cost of the accommodation in relation to the size, resources, nature and structure of the employer’s operation. The final rule provides a second set of factors to be considered when determining whether a “temporary suspension of an essential function” imposes an undue hardship, including, without limitation, the length of time that the employee will be unable to perform the essential function and whether there are other employees, temporary employees or third parties who can perform or be temporarily hired to perform the essential function.

What should employers do now?

Employers should review the EEOC’s final rule to better understand their obligations under the PWFA and the types of reasonable accommodations that may be required. Employers should also review and, if necessary, adjust their accommodation policies and processes to ensure compliance with the PWFA and the final rule. We also recommend training for management and human resources teams to ensure they are aware of any changes and understand how to respond to pregnancy-related accommodation requests.

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