On April 19, 2024, the Equal Employment Opportunity Commission published its final rule interpreting the Pregnant Workers Fairness Act. Today, the newly minted regulations went into effect.

As a reminder, the PWFA is a law that went into effect in 2023 and was designed to further protect the rights of pregnant employees. In short, it requires covered employers – generally, those covered by Title VII or several other statutes – to provide reasonable accommodations to qualified employees or applicants when an individual has known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. An employer may avoid this obligation if it can show that such an accommodation would cause an undue hardship.

Potential obligation to temporarily suspend essential job functions?

At first glance, this requirement and standard will likely look familiar to savvy HR professionals as it borrows language many are familiar with from the Americans with Disabilities Act. However, a closer review reveals the new regulations require more from an employer for pregnancy accommodations. Principally, there is now potentially an obligation to temporarily suspend essential job functions for a pregnant individual. Under the ADA, a qualified individual is one that meets the requirements of the position and can perform the essential functions of the role with or without reasonable accommodation. In other words, the individual must be able to complete the major tasks required of the position once a reasonable accommodation is in place.

The PWFA borrows that same definition from the ADA; however, it also includes a broader, second definition of a qualified individual. An employee or applicant is “qualified” even if they cannot perform one or more essential functions of the job, so long as the inability to perform the essential function(s) is “temporary,” the employee could perform the essential function(s) “in the near future,” and the inability to perform the essential function(s) can be reasonably accommodated. As such, there may be an obligation to continue employing individuals who cannot perform their job, if that restriction is not permanent. This is, of course, is a significant sea change from the ADA’s standard for pregnancy accommodations.

Limitations don’t need to rise to level of a disability

For any accommodation requirement to arise, the need and limitation must be known by the employer. The rule interprets this to mean “the employee or the employee’s representative has communicated the limitation to the employer.” There is an initial burden on the employee to make their employer aware of any pregnancy-related limitation. Nonetheless, these limitations can be modest, minor, or episodic, and they do not need to meet the definition of a disability under the ADA. Further, while the limitation must have some relation to a pregnancy, childbirth, or related medical condition, the limitation could still qualify under the PWFA if it was merely exacerbated by pregnancy.

The regulations also provide a list of accommodations that, “in virtually all cases,” are deemed to be reasonable and not cause an undue hardship, including: (1) allowing an employee to carry or keep water near and drink; (2) allowing an employee to take additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee to take breaks to eat and drink.

Additionally, there are limitations on when an employer can seek supporting documentation. Under the PWFA, it is only permitted to do so if it is reasonable to require documentation in order for the employer to determine whether the employee (or applicant) has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs a change or adjustment at work due the limitation.

Next steps for employers

Employers should analyze the newly released regulations and review their own processes for dealing with pregnant workers. For assistance with this or other accommodation issues, please contact your McAfee & Taft Labor & Employment Group attorney.