As we previously wrote when the Pregnant Workers Fairness Act (PWFA) went into effect in June 2023, the law requires most employers with 15 or more employees to provide “reasonable accommodations” for a qualified employee’s known limitations related to pregnancy, childbirth or related medical conditions unless the accommodation will cause the employer an undue hardship. Last week, the Equal Employment Opportunity Commission (EEOC) issued a Final Rule to implement the PWFA.

The Final Rule clarifies that, to be protected under the PFWA, an employee or an employee’s representative must have communicated to their employer that they are experiencing limitations due to pregnancy or another covered reason under the PFWA. In other words, the employer must have reason to know that the employee is experiencing a limitation related to pregnancy, childbirth or a related medical condition. Additionally, the Final Rule clarifies that both fertility treatments and abortion services are included under “related medical conditions” that require accommodation.

Unlike the Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodations to employees with disabilities, the employee’s limitation need not rise to the level of a disability to be entitled to accommodation under the PWFA. Instead, the accommodation request can be for a minor or episodic symptom associated with a covered limitation.

The Final Rule also clarifies that an employee or applicant can qualify for accommodation under the PFWA even if they cannot currently perform one or more essential functions of the job as long as their inability to perform the essential job function(s) is “temporary” and they will be able to perform the essential functions “in the near future.” This represents another key difference from the ADA, which generally requires that qualified individuals be able to perform the essential functions of their position with or without reasonable accommodation.

The Final Rule limits when an employer may request documentation from an employee or job applicant requesting accommodation under the PWFA. Specifically, employers may not require documentation for requests for “simple modifications” that will generally be found to be reasonable accommodations that do not impose an undue hardship, such as modifying policies or procedures to allow a qualified employee to take breaks to eat and drink or to sit and stand as needed, during work hours. However, in situations where requiring supporting documentation is reasonable under the circumstances (i.e., necessary to determine if the employee or applicant has a qualifying limitation under the PWFA and needs accommodation at work due the limitation), employers may request “‘minimum documentation’ that is sufficient to: (1) confirm the physical or mental condition; (2) confirm the physical or mental condition is related to, affected by or arising out of pregnancy, childbirth or related medical conditions (together with ‘a limitation’); and (3) describe the change or adjustment at work needed due to the limitation.”

The Final Rule also clarifies that the PFWA covers only an employee’s own limitations related to pregnancy, childbirth or other related medical conditions; like the ADA, it does not cover an individual based upon their association with someone else who may have a covered limitation. Likewise, neither the PWFA nor ADA cover time for childcare or bonding.

The Final Rule becomes effective June 18, 2024, and was published Friday in the Federal Register. Employers are encouraged to consult with counsel when receiving applicant or employee requests for accommodation under the PFWA to help navigate the new guidelines and key differences from the ADA that might necessitate changes to existing accommodation policies and procedures.

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