Introduction
This is a follow-up to our May 9, 2023, alert regarding the Pregnant Workers Fairness Act (PWFA) which went into effect on June 27, 2023. Congress required the Equal Employment Opportunity Commission (EEOC) to issue regulations under the PWFA. The EEOC has done just that by issuing its final rule and interpretive guidance which goes into effect on June 18, 2024. This alert outlines employers’ duties under the new law, provides clarity on pregnant workers’ rights and protections, and guides employers on ways to minimize risk and liability under the PWFA.
What is this law?
Covered entities are required to make reasonable accommodations to qualified employees or applicants who have known limitations related to pregnancy, childbirth, or related medical conditions, absent an undue hardship to the business.
Who is a covered employer or entity?
The PWFA applies to both private and public sector employers that have 15 or more employees. It also applies to Congress, Federal agencies, employment agencies, and labor organizations.
Who is a qualified employee or applicant?
Qualified employees or applicants include those who have a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and can either: a) perform the “essential functions” of the job with or without a reasonable accommodation, or b) if they are temporarily unable to perform the essential functions of the job but, could perform the functions in the “near future.”
What physical and mental conditions are covered?
As noted, the PWFA provides for reasonable accommodations for qualified workers with known limitations (i.e., physical or mental conditions that have been communicated to the employer) “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” The EEOC’s rule takes a broad view of “pregnancy, childbirth, or related medical conditions.” The EEOC’s final regulation includes a non-exhaustive list of examples of such conditions including fertility treatments; morning sickness; lactation; miscarriage; stillbirth; abortion; gestational diabetes; postpartum depression; anxiety; psychosis; edema; frequent urination; and placenta previa.
PWFA conditions encompass current, past, and potential pregnancy. Of note, physical or mental conditions can be considered PWFA limitations regardless of whether they meet the ADA’s stricter definition of “disability.”
Employee’s Obligations:
The employee must identify the limitation that is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions and the accommodation at work due to the limitation. This can be as simple as informing the employer that, “I need time off from work to attend a medical appointment because of my pregnancy” or “I cannot lift more than 20 pounds while I am pregnant.”
What must employers provide:
Employers are required to provide accommodations under the PWFA, absent undue hardship.
The best way for employers to handle this is to engage in the “interactive process”. The employer and employee communicate about the employee’s limitations and whether there is a reasonable accommodation that enables the employee to be able to continue to work. The employer must consider the employee’s preference but makes the final decision on the accommodation.
Reasonable accommodations:
Examples of reasonable accommodations include additional water, food, or restroom breaks; telework or time off to recover from childbirth or miscarriage; temporary reassignments or suspension of certain job duties; a place to sit while working; and time off for healthcare appointments. Potential accommodations related to lactation include ensuring that lactation spaces are within physical reach of mothers during work hours and the inclusion of essential features such as a private place to sit with proximity to refrigerators for milk storage.
Documentation:
Documentation from the employee is not required, but employers may request documentation when doing so is reasonable under the circumstances in order to confirm the physical or mental conditions arising from pregnancy, childbirth or related medical conditions, as well as the need for an accommodation. However, employers may not request unduly burdensome documentation.
What Employers Should Do Now:
Employers should ensure that supervisors and managers are properly trained on the PWFA and the interactive process so that they know how to respond to a request for an accommodation. When training managers, employers should understand that one of the goals of the PWFA is to find a way for employees to continue to work while pregnant.
Managers should be prepared in advance to understand the rights of applicants and workers who are pregnant, trying to become pregnant, recently gave birth, or miscarried. Of note, employers cannot require a qualified employee to take a leave, whether paid or unpaid, when other accommodations can be provided.
Employers must avoid retaliating against those who request or use a reasonable accommodation. The PWFA retaliation provision mirrors the protections under the ADA and Title VII.
Lastly, management should also be reminded that the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.
