Pregnant Workers Fairness Act 

By Sonal Shah, JD, Assistant Director, Employment Law Services
Published April 30, 2024

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) released final regulations and guidance regarding the Pregnant Workers Fairness Act (PWFA). The regulations and guidance, which span more than 400 pages, were officially published on April 19, 2024, in the Federal Register and will be effective 60 days thereafter.

As a reminder, the PWFA, which went into effect on June 27, 2023, requires, among other things, public and private employers with at least 15 employees to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation would cause an undue hardship on the employer’s business.

Highlights from the final regulations include:

• A broad definition of a qualified applicant or employee to include: (1) an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position; or (2) those who cannot perform an essential function of the job for a temporary period, if the person is or is expected to be able to perform the essential function in the near future (which in cases of current pregnancy is 40 weeks after the suspension of the essential function), and the inability to perform the essential function can be reasonably accommodated.
• Several examples of what constitutes a reasonable accommodation, including but not limited to additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for medical appointments; reserved parking, light duty, temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage.
• Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including, among other items, miscarriages, stillbirths, and abortions; migraines; gestational diabetes; preeclampsia; endometriosis; lactation; postpartum depression; and pregnancy-related conditions that are episodic, such as morning sickness. 
• Clarification that an employer is not required to obtain supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances. Specifically, the EEOC stated that employers should not seek supporting documentation: (1) when the limitation and need for a reasonable accommodation is obvious; (2) when the employer already has sufficient knowledge to determine there is a limitation related to pregnancy; (3) when the request is for an employee to carry or keep water in the workspace, for additional bathroom breaks, to sit and/or stand as needed, and to take breaks to eat or drink; (4) when the request is related to lactation; and (5) when employees without known limitations under the PWFA receive the requested modification without submitting supporting documentation. 
• A reminder that employers should limit their inquiries regarding the employee’s condition and need for accommodation to only those that are job-related and consistent with business necessity. Employers should also treat all documentation relating to a PWFA accommodation request in the same manner that they treat Americans with Disabilities Act (ADA) related documentation, i.e., maintain it confidentially and separate from an employee’s personnel file.
• Explanation of when an accommodation would impose an undue hardship on an employer and its business. Specifically, when an employee can perform all the essential job functions, undue hardship has the same meaning as under the Americans with Disabilities Act (ADA), and generally means significant difficulty or expense for the employer. If an employee cannot perform all essential functions and the accommodation is a temporary suspension of an essential job function, the employer needs to consider the ADA definition of undue hardship along with the following factors: (1) the length of time the employee or applicant will be unable to perform the essential functions; (2) whether there is work for the employee to do, for example, by allowing the employee to perform all the other functions of the job, transferring the employee to a different position, etc.; (3) the nature of the essential functions, including their frequency; (4) whether the employer has temporarily suspended the performance of essential job functions for other employees in similar positions; (5) whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential functions; and (6) whether the essential functions can be postponed or remain unperformed for any length of time and for how long.
  
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