EEOC Delivers: Pregnant Workers Fairness Act Regulations Take Effect June 18, 2024

By Kimberly J. Korando and Taylor M. Dewberry

After a lengthy gestation period, the U.S. Equal Employment Opportunity Commission delivered its Pregnant Workers Fairness Act (PWFA) regulations.

The PWFA went into effect June 27, 2023 requiring covered employers to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.[1]  Employers with 15 or more employees are covered and must comply with the regulations.

The PWFA regulations impose far greater obligations and limitations on employers than those imposed by the Americans with Disabilities Act (ADA) and the PUMP Act, including limiting when and how much medical information can be obtained, requiring elimination of some essential job functions, deeming certain accommodations per se reasonable and required absent extenuating circumstances, and adding nursing during work hours as a reasonable accommodation. The regulations are set to take effect June 18, 2024.

Here is a summary of what employer actions are required, and what is prohibited, under the newly issued PWFA regulations. 

Covered Conditions and Limitations

Pregnancy, childbirth, or related medical conditions that may be entitled to reasonable accommodation include a wide range of conditions, including but not limited to current or past pregnancy, potential or intended pregnancy (including infertility, fertility treatments or use of contraception), labor, delivery, miscarriage, abortion, postpartum depression, gestational diabetes, endometria, changes in hormone levels, lactation, high blood pressure, incontinence and pre-existing conditions exacerbated by pregnancy or childbirth.

Limitations related to pregnancy, childbirth or related medical conditions can be “modest, minor, and/or episodic, and do[] not need to meet the definition of disability” under the Americans with Disabilities Act (ADA).  In other words, there is no severity threshold for coverage. For example, limitations can be problems such as migraines or morning sickness or inability to be around certain chemicals, work in the heat, perform certain physical tasks, the need to attend health care appointments for the pregnancy, childbirth, or related medical condition itself or simply to help maintain the individual’s health and ability to work. 

Who Is A “Qualified” Employee or Applicant?

Employees and applicants who can perform the essential job functions with or without a reasonable accommodation are qualified. “Essential functions” are the fundamental duties of the job.

Employees who cannot perform the essential job functions with or without a reasonable accommodation also can be qualified as long as:

• the inability to perform the essential functions is temporary,
• they could perform the functions in the near future, and
• the inability to perform the essential functions can be reasonably accommodated.

The regulations define temporary as “lasting for a limited time, not permanent,” and may extend beyond “in the near future.” For current pregnancy, “in the near future” is defined as “generally forty weeks from the start of the temporary suspension of an essential function.”  For other conditions, in the near future is not defined, except to provide that indefinite leave would not qualify. 

When May Reasonable Accommodation Be Required?

Notice. As an initial matter, employers are required to provide reasonable accommodation only to “known limitations.” To be known, the limitation must be communicated to the employer. Communications may be verbal. No specific communication format is required, and the communication may be made to the supervisor, human resources personnel or a manager with supervisory authority over the individual or someone who regularly directs the individual’s tasks. Communications can be as informal as:

• “I’m having trouble getting to work at my scheduled starting time because of morning sickness.”
• “I need more bathroom breaks because of my pregnancy.”
• “I need time off from work to attend a medical appointment because of my pregnancy.” 

Interactive Process. Once the limitation or request is known, the employer is to engage in the “interactive process” with the individual. The “interactive process” means simply that the employer and individual communicate, whether by talking or some other way, about the known limitation and the adjustment or change needed at work.

Documentation. Employers may request what the regulations describe as the “minimum documentation” necessary to (i) confirm that the individual has a qualifying condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions and (ii) describe the needed accommodation. Importantly, the employer is required to accept the individual’s “self-confirmation” when the pregnancy is obvious or the individual is requesting a “predictable assessment accommodation.” Employers are not permitted to require the documentation to be submitted on a specific form, nor request that the health care provider submitting the documentation be the provider treating the condition. Additionally, there are a number of circumstances in which the employer is prohibited from requesting supporting documentation:

• The limitation and needed accommodation are obvious and the individual provides “self-confirmation.”
• The employer has sufficient information to determine whether the limitation exists and the accommodation is needed.
• The individual is pregnant and the accommodation is a “predictable assessment.”
• The accommodation is related to time/place to pump or nurse during work hours and the employee provides “self-confirmation.”
• The accommodation is available to employees without known PWFA limitations without submitting supporting documentation.

Medical documentation must be kept as a confidential medical record.

What Reasonable Accommodation May Be Required?

A reasonable accommodation is a change in the work environment or the way things are usually done at work to remove a work-related barrier or to provide the individual with the equal benefits or other privileges of employment. Reasonable accommodations that may be needed due to limitations related to pregnancy, childbirth or related medical conditions include:

• Temporary suspension of one or more essential job duties.
• Light duty or help with lifting or physical tasks.
• Temporary reassignment to another job.
• Modified work schedule, such as having shorter hours, part-time work, or a later start time.
• Additional, longer, or more flexible breaks to drink water, eat, rest or use the restroom.
• Changing food or drink policies to allow for a water bottle or food.
• Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing.
• Changing a uniform or dress code or providing safety equipment that fits.
• Reserved parking.
• Work from home.
• Leave for health care appointments.
• Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.
• Lactation accommodations that exceed those required by the PUMP Act, including space for pumping in proximity to a sink, running water, refrigeration for storing milk, and nursing during working hours when the employee and child are in close proximity (work from home or on-site daycare). 

Undue Hardship and Predictable Assessments. The PWFA does not require the employer to provide any reasonable accommodation that would cause an undue hardship on the employer. Undue hardship means significant difficulty or expense and has the same meaning as under the ADA. However, the regulations set forth 4 predictable assessments that will not cause an undue hardship in virtually all cases:

• Allowing the employee to have or carry water nearby to drink, as needed.
• Allowing the employee to take breaks to eat or drink, as needed.
• Allowing additional restroom breaks, as needed.
• Allowing the employee to sit or stand, as needed.

The regulations state that the employer’s delay in providing a predictable assessment accommodation “will virtually always result in a finding of unnecessary delay” and violate the PWFA.

The regulations acknowledge that there may be limited situations in which such accommodations would pose an undue hardship, and these are to be evaluated with an individual assessment of the accommodation.

Undue Hardship and Temporary Suspension of Essential Job Function. If the accommodation involves the temporary suspension of essential job functions, the accommodation should be evaluated by applying the ADA definition of undue hardship and the following:

• Length of time the essential job function cannot be performed.
• Whether there is other work for the individual to perform in the job or another job.
• Nature of the essential function, including frequency.
• Whether the essential function has been suspended for other employees.
• Whether other employees or temporary employees can perform, or be temporarily hired to perform, the essential function.
• Whether the essential function can be postponed or remain undone for any length of time and, if so, for how long. 

Changing Circumstances. The regulations acknowledge that limitations and needed accommodations may change over time as the pregnancy progresses, the individual recovers from childbirth, or the related medical condition improves or gets worse. 

Prohibited Actions in a Nutshell

Under the PWFA, covered employers must not:

• Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation.
• Fail to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship.
• Require an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process.
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working. 

Final Thoughts

The regulations provide numerous examples and practical guidance on common workplace scenarios. Now is the time for covered employers to:

• Become familiar with these examples and practical guidance.
• Update their pregnancy accommodation policies.
• Provide appropriate training to supervisors and managers to minimize inadvertent PWFA violations for unnecessary delay in granting predictable assessments.
• Educate human resources staff on the differences in the obligations for processing accommodation requests under the PWFA, PUMP Act and the ADA.

For more information on PWFA or other employment law matters, please contact Kim Korando, Taylor Dewberry or the Smith Anderson lawyer with whom you regularly work.

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[1] The PWFA applies only to accommodations. But remember, other laws such as Title VII make it illegal to fire or otherwise discriminate against employees or applicants on the basis of pregnancy, childbirth, or related medical conditions. And, the PWFA does not override state or local laws that provide more rights to employees and applicants affected by pregnancy, childbirth, or related medical conditions.