On April 15, 2024, the U.S. Equal Employment Opportunity Commission (the EEOC) published its final Pregnant Workers Fairness Act (PWFA) regulation requiring covered employers to provide qualifying employees and applicants accommodations to perform their work duties safely and without retaliation. This alert covers key provisions of the final rule.

Effective June 18, 2024, under the PWFA and the EEOC’s regulations:

• In addition to current anti-discrimination laws protecting pregnant employees, covered employers will be required to affirmatively make reasonable accommodations related to the pregnancy, childbirth, or related medical conditions of qualified employees and applicants, unless the accommodation presents an undue hardship to the employer;
• The definition of individuals qualified to request an accommodation under federal law is expanded to include employees and applicants who may have a temporary inability to perform an essential job function due to pregnancy or a related condition;
• Qualified employees will not be required to show that the underlying condition meets a specific severity threshold, nor will they need to specify a condition on the non-exhaustive list of examples provided by the EEOC; and
• Employers will be restricted from requesting documentation to support a covered employee’s request in certain situations and are prohibited from retaliating against employees or applicants who request a pregnancy-related accommodation.

The PWFA Extends Protection for Pregnant Employees Under Existing Federal and State Civil Rights Laws

The PWFA extends protection for pregnant employees and applicants under existing federal civil rights laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Pump Act, and various state and local laws.

An extension of the Pregnancy Discrimination Act of 1978, the PWFA expands an employer’s obligation to accommodate pregnant employees and applicants and reduces the criteria those individuals must satisfy under federal law to request reasonable changes to accommodate pregnancy-related limitations in the workplace.

Though many of the obligations under the PWFA mirror the requirements of the ADA for individuals with disabilities, unlike the ADA, the PWFA offers protection to qualifying employees seeking accommodations, irrespective of whether they can perform essential job functions for an extended period. Qualified employees may request accommodations for conditions that impose only a temporary inability to perform an essential job function, provided that the employee is expected to be able to perform the essential function in the near future (a time period to be determined on a case-by-case basis, provided it is not indefinite).

The PWFA Applies to a Wide Range of Employers and Broadly Defines Qualifying Employees

The final rule applies to private and public sector employers that have 15 or more employees, as well as Congress, federal agencies, employment agencies, and labor organizations, unless the entity can demonstrate an accommodation would cause an “undue hardship.”

If an employee or applicant has a “known limitation” due to pregnancy, childbirth, or related medical conditions, they may request a reasonable accommodation and expect their employer to grant the requested accommodation or an equally effective accommodation in the absence of an undue hardship.  The physical or mental condition can be minor, modest, or episodic (e.g., migraines or morning sickness).

Under the PWFA, a qualifying limitation is established as “known” only after an employee, applicant, or their representative has affirmatively communicated with the employer about the limitation.

Non-Exhaustive List of Covered Medical Conditions and Reasonable Accommodations

Without the PWFA, pregnancy would not be considered a condition eligible for accommodation, as pregnancy is not considered a disability under the ADA.  Title VII only addresses discrimination based on pregnancy, not accommodations.  Under the PWFA, a qualifying medical condition “need not be caused solely, originally, or substantially by pregnancy or childbirth.”  A condition that may have existed before pregnancy or childbirth and for which an individual may already receive an ADA accommodation is a qualifying medical condition if it is exacerbated by pregnancy or childbirth. Per the EEOC, the non-exhaustive list of covered conditions includes those where the relation to pregnancy is readily apparent, including pregnancy itself, contraception that affects the individual employee’s potential pregnancy, lactation, vomiting, abortions, and preeclampsia, as well as pre-existing conditions that are exacerbated by pregnancy or childbirth. If the employee has a condition, but it does not relate to pregnancy or childbirth, the condition is not covered.

The EEOC’s non-exhaustive list of qualifying conditions received significant attention during the commentary period and has since been challenged in a lawsuit filed by seventeen Republican state attorneys claiming the EEOC’s inclusion of abortion as a qualifying condition for workplace accommodation is unconstitutional.

The EEOC’s non-exhaustive list of potential reasonable accommodations that could adequately address known limitations related to pregnancy, childbirth or related medical conditions includes:

• Additional, extended, or more flexible breaks to hydrate, eat, rest, or use the restroom, with an opportunity to make up additional time;
• Allowing workers to carry water bottles or food;
• Changing positions of equipment devices or workstations;
• Leave for healthcare appointments;
• Temporary reassignment;
• Providing reserved parking spaces; and
• Telework

Once an employer receives notice of a qualified employee or applicant’s limitations and a related need for an adjustment at work, the employer and employee must engage in an interactive process that involves two-way collaboration from the initiation phase through selection of the accommodation that does not cause the employer undue hardship.  An accommodation presents an undue hardship if it causes the employer a significant difficulty or expense when compared to the specific employer’s resources, a standard the courts have interpreted narrowly in the ADA context.

The EEOC provides four “predictable assessments” where, in virtually all cases, the reasonable accommodation will not be found to impose an undue hardship on the employer: (1) allowing an employee additional restroom breaks, (2) allowing an employee to carry water and drink, as needed, in the employer’s work area, (3) allowing an employee breaks, as needed, to eat and drink, and (4) allowing an employee whose work requires standing to sit and those whose work requires sitting to stand.

Employers must consult with qualifying employees or applicants to ascertain what kind of accommodation is necessary given the known limitation and are prohibited from mandating an accommodation that is not selected by the worker.

Restrictions on Seeking Supporting Documentation and Requesting Disclosure of Medical Information

Following the ADA’s prescription, the EEOC limits an employer’s entitlement to request supportive documentation to reasonable circumstances, and the documentation itself must also be reasonable. According to the EEOC, it is not reasonable to seek supporting documentation when:

1. The limitation and need for an adjustment or change at work due to limitation is obvious;
2. The employer already knows about the limitation and the adjustment or change at work due to the limitation;
3. The employee is currently pregnant and needs breaks for the restroom or to eat or drink, needs to carry water with them to drink, or needs to stand if their job requires sitting or to sit if their job requires standing;
4. The employee is lactating and needs modifications to pump at work or nurse during work hours (but the employer can request documentation if the employee requests full-time remote work for pumping); or
5. The employer would not ask an employee for documentation in that situation normally.

Though an employer can seek medical information from an employee’s healthcare provider under reasonable circumstances, unlike the ADA, the employer may not require workers seeking accommodations be examined by a healthcare provider selected by the employer.  All inquiries related to the accommodation request should continue to be limited to business necessity.

Enforcement

Enforcement procedures for filing a charge or claim under the PWFA are the same as under Title VII.  Employees must file an administrative charge with the EEOC and can file a lawsuit once the EEOC issues a right to sue notice.  Remedies available to the aggrieved employee include damages, attorneys’ fees, and costs incurred in asserting the employee’s claims.

Next Steps

Because the new regulation builds on pre-existing federal law, employers need to familiarize themselves with the distinctions between the PWFA and the ADA, Title VII, FMLA, and related state and local laws.  Employers should prioritize working with counsel to educate and train human resource management personnel to comply with PWFA requirements. In addition, employers should examine and update their policies in tandem with the EEOC’s interpretive guidance on the PWFA to ensure the policies comply with the PWFA’s obligations.

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