The Laws, They Are a Changing, Part III: What Employers Need to Know about the EEOC’s Final Rule Implementing the Pregnant Workers Fairness Act

The next two articles in our series will summarize important guidance and interpretation from the Equal Employment Opportunity Commission (“EEOC”). This article highlights important provisions of the EEOC’s Final Rule, “Implementation of the Pregnant Workers Fairness Act” (the “Final Rule”), which went into effect on June 18, 2024. Our next article will review the EEOC’s updated Enforcement Guidance on Harassment in the Workplace, which updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999 and serves as a single, unified agency resource on EEOC-enforced workplace harassment law. 

1. The Basics

The Pregnant Workers Fairness Act (“PWFA”) went into effect on June 27, 2023. The core legal requirement of the PWFA is that it requires employers with fifteen (15) or more employees (“covered employer”) to make reasonable accommodations for a qualified employee or applicant with a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship. It also prohibits a covered employer from:

• Failing to make a reasonable accommodation for the known limitations (defined as physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions) of an employee or applicant, unless the accommodation would cause an undue hardship;
• Requiring an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
• Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Punishing or retaliating against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation); or
• Coercing individuals who are exercising their rights or helping others exercise their rights under the PWFA.

Although the Americans with Disabilities Act (“ADA”) and PWFA are similar in that they both require covered employers to engage in the interactive process, maintain the confidentiality of employee medical information, and prohibit retaliation or coercion, there are key differences in the type of accommodations required and when an accommodation is required.

2. Known Limitations

Unlike the ADA, a “limitation” does not have to be a disability. A limitation can include 1) a problem or impediment that is modest, minor, and/or episodic, 2) a need or problem related to maintaining the employee’s health or the health of the pregnancy, or 3) health care related to the employee’s pregnancy, childbirth, or a related medical condition. The term “pregnancy” includes a current pregnancy, past pregnancy, or potential or intended pregnancy. Examples of covered limitations include:

• Nausea or vomiting; edema of the legs, ankles, feet, or fingers;
• Frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels;
• Sciatica; carpal tunnel syndrome; chronic migraines; dehydration;
• Maternal cardiometabolic disease; gestational diabetes; preeclampsia; hyperemesis gravidarum; anemia;
• High blood pressure; infection; anxiety, depression, or psychosis during or after pregnancy; aggravation of existing medical conditions by pregnancy or childbirth.

An employee does not have to use specific words or phrases in communicating the limitation or making a request for an accommodation. For example, an employee telling their covered employer that they are having trouble getting to work in the morning because of morning sickness would be sufficient to trigger the interactive process.

3. Requesting Documentation

Once the need for an accommodation becomes known to the covered employer, the covered employer must engage in the interactive process. Covered employers may only request supporting documentation when it is reasonable under the circumstances and the documentation requested is reasonable.

In situations where it is reasonable to request documentation, covered employers may request only the minimum that is necessary to 1) confirm the limitation, 2) confirm that the limitation is related to pregnancy, childbirth, or related medical conditions; and 3) describe the needed accommodation or possible accommodation. The EEOC has specifically cautioned that ADA or FMLA forms typically request more than is minimally necessary and should not be used.

Because a limitation can be modest or minor, a medical diagnosis is not required for certain accommodations. Specifically, the Final Rule states that it is not reasonable to request documentation when:

• The limitation (pregnancy) and the accommodation are “obvious,” (ex: at seven months, the employee asks for a larger uniform);
• The employee requests to pump at work or nurse during work hours;
• The limitation and accommodation already are “known” (ex: each episodic event does not need documentation);
• Predictable assessments (ex: carrying water, additional breaks, or changing seating/standing positions); or
• The employer’s own policies or practices would not seek supporting documentation from non-pregnant people seeking a similar accommodation.

4. Reasonable Accommodations

 “Reasonable accommodations” are changes in the work environment or the way things are usually done at work and may include:

• 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; or
• Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

Covered employers must remember that an employee still qualifies for an accommodation even if the employee cannot perform the essential functions of the job as long as the inability is “temporary;” the employee could perform the functions “in the near future;” and the inability to perform the essential functions can be reasonably accommodated. The EEOC has stated, “This means that an employee who is temporarily unable to perform one or more essential functions of their job, and who therefore needs light duty or a change in their work assignments, may be able to get such a change as a reasonable accommodation.” 

Examples of a reasonable accommodation for the temporary suspension of an essential function may include the covered employer temporarily:

• Removing that essential function but continuing to have the employee perform the remaining functions of the employee’s job;
• Removing that essential function essential function but continuing to have the employee perform the remaining functions of the employee’s job along with assigned “substitute” functions;
• Having the employee perform the functions of a different job while not performing the functions of the employee’s current job; or
• Assigning the employee to light or modified duty.

Unfortunately, the Final Rule does not give a clear definition of “temporary.” Instead, it merely indicates that “temporary” may extend beyond the near future and that “temporary” means approximately 40 weeks for pregnancy. It does not include a specific definition of “temporary” for other conditions relating to or arising from the pregnancy.

5. Next Steps

Since the Final Rule became effective on June 18, 2024, covered employers should make sure that supervisors and other management personnel receive training as to their obligations and duties under the PWFA. Covered employers should also ensure that they have placed the most recent Know Your Rights: Workplace Discrimination is Illegal Poster in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. 

Additional guidance can also be found in the EEOC’s What You Should Know about the PWFA  and EEOC’s Summary of Key Provisions of the Final Rule for a more detailed overview of the PWFA. Although very lengthy, covered employers may also consider referencing Appendix A to the Final Rule which provides over seventy-five “real life” PWFA related examples.

Of course, we are always standing guard to assist you with buttressing your defenses against any pregnancy related claims and will keep you appraised of any major developments as PWFA cases begin to make their way through the court system.

            THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.