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18th Jun 2024
The Pregnant Workers Fairness Act (PWFA), enacted in the summer of 2023, has new regulations being enforced by the Equal Employment Opportunity Commission (EEOC) starting June 18th, 2024. The EEOC received about 100,000 comments regarding the regulations released in 2023, so the 408-page Final Rule reflects changes prompted by these comments, which ultimately is clarity on the PWFA, and how employers should be complying with the law.
It is important to note that the PWFA does not replace other federal, state, or local laws that are more protective. Below are some of the key takeaways from the Final Rule that employers should know.
What is the law?
The Pregnant Workers Fairness Act is a law that mandates federal requirements for employers to provide “reasonable accommodations” in the workplace to an employee with limitations due to pregnancy and childbirth, or other related medical conditions, unless this implementation imposes “undue hardship” for the employer. The Final Rule defines undue hardship as “significant difficulty or expense for the operation of the employer.” The PWFA protects “covered employees” in the private and public sector with 15 or more employees, Congress and Federal agencies, employment agencies, and labor organizations.
What is a “reasonable accommodation?”
A “reasonable accommodation” is a change or modification that an employer makes that provides an employee who has a limitation or disability related to pregnancy or childbirth to be able to successfully perform their job. While some accommodations may impose undue hardship on the employer, there are four accommodations that the EEOC says should almost always be reasonable for every employer to comply with. The Final Rule states that the following “predictable assessments” should be allowed, in almost every circumstance, without documentation from the employee:
- Additional restroom breaks
- Additional water and food breaks, when necessary
- Carrying and keeping water and food nearby
- Allowing sitting and standing, when necessary
The EEOC states that the Final Rule, like the proposed rule, says that a reasonable accommodation could also include:
- Frequent breaks
- Sitting/Standing
- Schedule changes, part-time work, and paid and unpaid leave
- Telework
- Parking
- Light duty
- Making existing facilities accessible or modifying the work environment
- Job restructuring
- Temporarily suspending one or more essential functions
- Acquiring or modifying equipment, uniforms, or devices
- Adjusting or modifying examinations or policies
What conditions, physical and mental, are covered by the PWFA?
The original rule, and the Final Rule, state that employees can make requests for reasonable accommodations, “related to, affected by, arising out of pregnancy, childbirth, or related medical conditions.” However, the Final Rule goes more in depth to include a list of the following possible covered conditions:
- Fertility treatments
- Lactation
- Morning sickness
- Gestational diabetes
- Edema
- Frequent urination
- Placenta previa
- Miscarriage
- Stillborn
- Abortion
- Postpartum depression
- Anxiety
- Psychosis
It is important to note that these conditions encompass current, past, and future pregnancies and that they are considered imitations or disabilities even though the Americans with Disabilities Act (ADA) defines disability in a stricter way than the PWFA.
Essential job functions may be suspended, temporarily
Under the PWFA, employees may be “temporarily exempt” from performing essential job functions as long as they can resume performing them “in the near future.” The original proposed rule included “in the near future” to mean about 40 weeks from when the employee stops performing the essential functions of their job. However, the Final Rule states that this determination should be made on a “case by case basis.”
Documentation
The employee must communicate with the employer about their limitation and need for accommodation. This can be done by just voicing what they need based on their limitations through simple conversations or over email. An example would be, “I need to take time off for an appointment because of my pregnancy.”
The Final Rule clarifies that employees are not required to provide documentation to their employer to confirm their conditions resulting from pregnancy, childbirth, or other related medical conditions. However, the employer does have the right to request documentation, albeit only “under reasonable circumstances.” For example, where an employee states that they are unable to lift heavy objects as required by their job due to a pregnancy-related back problem, the employer would be permitted to verify that the back issue is related to their pregnancy as a condition of accommodating.
Employers must not request employees to provide more information than permitted under the PWFA. The Final Rule prohibits employers from asking for documentation in the following scenarios:
- When the limitation and need for a “reasonable accommodation” is obvious;
- When the employer already has sufficient information to support a known limitation related to pregnancy;
- When the request is for one of the four “predictable assessment” accommodations;
- When the request is for a lactation accommodation; and
- When employees without known limitations under the PWFA receive the requested modification under the employer’s policy or practice without submitting supporting documentation.
What must employers do?
The Final Rule expresses that employers must respond to requests with “expediency.” Typically, the nature of these requests are temporary so employers must respond by providing the requested accommodation, even it if initially is an interim accommodation. It is beneficial for employers to act quickly to limit liability. An interim accommodation could also be used as evidence to contest a possible claim from an employee who says the reasonable accommodation was delayed.
Employers will benefit from discussions and creating and updating policies that comply with the PWFA regarding these accommodations before they have an employee that may need them. They should also make sure human resources, supervisors, and managers are properly educated on their PWFA policies. The employee handbook should also be updated with the policies and employers should make sure they keep proper documentation and records for all requests and actions taken. Proper documentation is important for the employer because it shows compliance with the law and protects them from any potential claim. Employers must fully understand the rights and protections of the PWFA, so they can minimize risk and liability to their business.
Charlotte Burrows, the EEOC Chair, says, “The bottom line is that no one should have to risk their job or their health just because they are pregnant, recovering from childbirth, or dealing with a related medical condition.” It would be wise for employers to seek counsel’s guidance to ensure they are complying with the law. If you would like more information on the PWFA and the Final Rule, our business law attorneys are available to assist you.
Written by Beier Howlett
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