June 17, 2024 Article

Compliance for Two—What Employers Need to Know about the Newly Effective Final Regulation for the Pregnant Workers Fairness Act

On June 18, 2024 the final rule from the U.S. Equal Employment Opportunity Commission (EEOC) implementing the Pregnant Workers Fairness Act (PWFA) takes effect, clarifying employers' obligations under this landmark legislation. Effective since June 27, 2023, the PWFA requires covered employers provide reasonable accommodations for employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions, barring undue hardship. Similar to compliance requirements for accommodating religious beliefs or disabilities, the PWFA integrates the duty to accommodate into the broader federal pregnancy non-discrimination schema, making it essential for employers to understand what is required of them to stay in compliance.

What does it mean for an employee to have a “known limitation”?

A known limitation is a physical or mental impairment experienced by the employee that is communicated to the employer. The limitation may be a “modest, minor, and/or episodic impediment or problem” or can be an action the employee needs to take for their health or the health of the pregnancy or to seek healthcare related to pregnancy, childbirth or a related medical condition. But a “known limitation” does not need to rise to the level of an ADA-protected disability to qualify for the PWFA’s protections.

How does the PWFA define “pregnancy” and “childbirth”?

Pregnancy and childbirth refer to the pregnancy or childbirth of the specific employee in question and includes, without limitation, current pregnancy, past pregnancy, potential or intended pregnancy (which in turn can include infertility, fertility treatment, and the use of contraception), labor, and childbirth. 

How does the PWFA define “related medical condition”?

A related medical condition is a medical condition relating to the pregnancy or childbirth of the employee, including termination of pregnancy (via miscarriage, abortion, or stillbirth), anemia, sciatica, chronic migraines, postpartum depression, frequent urination, changes in hormone levels, lactation, and gestational diabetes—just to name a few.

The EEOC’s decision to include abortion as a condition is the subject of current litigation. The PWFA does not require employers to pay for an employee’s abortion procedure or any travel-related expenses associated with the procedure. However, it does require employers to provide time off for recovery for employees who undergo the procedure.

What does the PWFA accommodation request process look like?

It closely resembles the interactive process under the Americans with Disabilities Act (ADA). The “interactive process” is simply the employer and employee communicating, whether by talking or some other way, about the employee’s limitation and the adjustment or change at work that the employee needs due to their limitation. There are no magic words that an employee (or their representative) has to say to start the interactive process, merely informing the employer that they have qualifying limitation and that they need an adjustment or change at work for that reason is sufficient to trigger the interactive process. For example, if a warehouse employee returns from parental leave and asks to use a dolly to move bulky items for a few months because she has lifting restrictions due to her cesarian section, the employee has requested an accommodation under the PWFA. What’s important next is that the employer responds swiftly and avoids any unnecessary delay.

Importantly, employers may not require a qualified employee or applicant to accept an accommodation offered outside the interactive process and may not require them to take leave (paid or unpaid) if another reasonable accommodation exists. An employer may however deny a qualified employee or applicant an accommodation under the PWFA if the accommodation would cause undue hardship to the employer, meaning significant difficulty or expense for the employer’s operations—which may be a high bar for many employers to meet.

Can the employee be asked to provide supporting documentation?

Requesting documentation is generally disfavored. The EEOC anticipates that most accommodation requests will be straightforward, and most accommodations will be provided following a conversation or e-mail between the employer and the employee without the need for further documentation.

If it is reasonable under the circumstances, an employer may request supporting documentation from the employee’s healthcare provider. The EEOC has articulated several circumstances where it is per se unreasonable for an employer to seek documentation:

  • If the employee’s limitation and need for an adjustment or change at work due to the limitation is obvious. For example, if an obviously pregnant worker requests a different size uniform, the employer may not request supporting documentation.

  • If the employer already knows about the limitation and the requested adjustment or change at work. For example, if the employee has already provided information that they have a recurrent limitation (e.g., morning sickness) and need an accommodation as a result (e.g., flexible scheduling), the employer cannot require supporting documentation each time that recurrent and previously established need arises.

  • If a pregnant employee requests bathroom breaks, to eat or drink or carry water with them to drink, or to stand if their job requires sitting or to sit if their job requires standing.

  • If an employee is lactating and needs modifications to pump at work or nurse during work hours.

  • If the employer would not normally ask an employee for documentation in that situation.

In those limited circumstances where it is reasonable to request supporting documentation, the documentation requested must be limited to confirmation of the known limitation subject to the PWFA (though pregnancy, childbirth, and related medical conditions need not be the sole, original or substance cause of the limitation at issue) and a description of an appropriate accommodation for the limitation. Employers who request documentation (where warranted) are advised to consider granting an interim reasonable accommodation to avoid unnecessary delay.

What are examples of “reasonable accommodation” under the PWFA?

In the final rule, the EEOC declined to take the position that certain modifications would always be reasonable and never impose undue hardship. However, the EEOC sees the following modifications as predictably reasonable and unlikely to impose undue hardship in virtually all cases: 

  • Allowing an employee to carry or keep water near and drink as needed.
  • Allowing an employee to take additional restroom breaks, as needed.
  • Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed.
  • Allowing an employee to take breaks to eat and drink, as needed.

In the final regulation, the EEOC also listed the following as examples of possible reasonable accommodations (barring undue hardship):

  • 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.
  • Changing a work schedule, such as having shorter hours, part-time work, or a later start time.
  • Telework.
  • Temporary reassignment.
  • Temporary suspension of one or more essential functions of a job.
  • Leave for health care appointments.
  • Light duty or help with lifting or other manual labor.
  • Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

Although employers are not obligated to provide one of the above example accommodations if doing so would impose an undue hardship, employers should be wary that proving undue hardship in such circumstances is a tall order. The EEOC included these examples because it sees them as accommodations that the employer should be able to provide with little difficulty.

It is also important to keep in mind that a qualified employee or applicant may need more than one accommodation at the same time or different accommodations at different times, as a pregnancy progresses, or before during or after pregnancy.  

When do the PWFA’s protections kick in for an employee?

Generally, the law covers employees and applicants during pregnancy and childbirth and following childbirth. However, in some cases, employees may invoke the law’s protections to request an accommodation for qualifying conditions outside the usual timeline. For example, depending on the circumstances, an employee may be entitled to a reasonable accommodation for physical or mental conditions related to fertility treatment (e.g., IVF) when an employee with the capacity to become pregnant is trying to get pregnant. 

Compliance Pointers

  1. The PWFA is not instructive on all pregnancy and childbirth related compliance obligations. In fact, the PWFA is merely one of a constellation of federal (or state) laws that may bear on an employer’s obligations to an employee (or applicant) who requests an accommodation, including but limited to Title VII, the Pregnancy Discrimination Act, the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, the Family and Medical Leave Act, and the Americans with Disabilities Act (ADA).
  2. Review your organizations’ personnel policies and procedures. Is there a procedure for requesting an accommodation for a limitation related to pregnancy, childbirth, or a related medical condition? It’s equally important to make sure that any revised or new policies are administrable. If your organization uses one procedure for disability accommodation requests and another for PWFA-related accommodations, employees and staff may get confused. It’s a good idea to streamline whenever possible. 
  3. PWFA accommodation requests can come in any form, and it’s important that management and supervisors are trained on what to look for and how to respond.
  4. Because the EEOC expects that most PWFA accommodations will be provided following nothing more than a conversation or email and without relying on other forms or other processes, it behooves employers who use forms to process accommodation requests to review the form and confirm they are simple, do not deter the employee from making the request, and do not delay the provision of an accommodation. We also recommend that employers identify in both their accommodation policies and on the form itself which channels are available to communicate their request. 
  5. Even if your organization is not subject to FMLA (or a state analogue) and, as a consequence, has not previously provided employees (unpaid or paid) parental leave for childbirth; the status quo is going to change because a pregnant employee may request reasonable unpaid leave to recover from childbirth as an accommodation.
  6. Keep information related to PWFA accommodation requests in a confidential file separate from the employee’s personnel file.

This alert only addresses the pregnancy and childbirth-related accommodation requirements under federal law.  Remember to periodically check to make sure your organization complies with all applicable state and local requirements.