Client Alert: What Employers Need to Know About the EEOC’s Final Rule and Interpretive Guidance on the Pregnant Workers Fairness Act

The Pregnant Worker’s Fairness Act (PWFA) became effective in June of 2023. When it did,  Congress directed the Employment Opportunity Commission (EEOC) to issue administrative regulations which provide interpretive guidance for implementing the PWFA. The EEOC has now issued its final rule and interpretative guidance (the “Regulation”) which takes effect June 18, 2024.

What is the PWFA?

The PWFA is a federal law requiring public and private employers with at least fifteen (15) employees to provide reasonable accommodations to qualified employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions. Employers have the limited option of rejecting an accommodation request if it poses an “undue hardship” to the employer. Other federal laws make it illegal to fire or discriminate against an employee or applicant based on pregnancy, childbirth, or related medical conditions.

What is the Regulation?

Employers are encouraged to read the new regulations in their entirety, which can be found here.

In short, the Regulation clarifies: (1) what is a reasonable accommodation; (2) who is a “qualified employee” or “qualified applicant;” (3) what is a “known limitation”; (4) what is included in “pregnancy, childbirth, or related medical conditions”; (5) the process for requesting reasonable accommodations; and (6) what is an “undue hardship.”

1. Reasonable Accommodations

According to the EEOC, “‘[r]easonable accommodations’ are changes in the work environment or the way things are usually done at work.”  (https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act).

Under the PWFA, employers and employees are to engage in an “interactive process” to determine and carry out reasonable accommodations for qualified employees. The goal of this process is to provide reasonable accommodation promptly and considerately, avoiding unnecessary paperwork and delays. It emphasizes simple communication such as brief conversations or emails, prioritizing flexibility, and individualized solutions with minimal burden.

The Regulation provides useful examples of types of reasonable accommodations under the PWFA (although this list is not exhaustive):

• Telework or remote work;
• Assignment to light duty or placement in a light duty program;
• Making existing facilities accessible or modifying the work environment;
• Job restructuring, including temporary suspension of one or more essential functions;
• Increased breaks to allow an employee to pump as a lactation accommodation;
• Carrying or keeping water near for drinking;
• Paid/unpaid leave, schedule changes, or time off;
• Taking additional or frequent restroom or eating breaks; and/or
• Sitting, for those whose work requires standing, and standing, for those whose work requires sitting, as needed.

2. Qualified Employees and Applicants

There are two ways an employee or applicant can be “qualified.” An employee or applicant is qualified if they can perform the “essential functions” of the employment position with or without reasonable accommodations. Or, an employee can be qualified even if they cannot do the essential functions of their job so long as:

(a) any inability to perform an essential function is for a temporary period;

(b) the essential function could be performed in the near future; and

(c) the inability to perform the essential function can be reasonably accommodated.

3. A Known Limitation

The PWFA defines “known” to mean that the employee or the applicant or one of their representatives has communicated with the employer about the limitation. The PWFA defines “limitation” to mean a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The Regulation clarifies that a limitation can be:

(a) an impediment or problem that may be modest, minor, and/or episodic;

(b) a need or problem related to maintaining the employee’s health or the health of the pregnancy; or

(c) seeking health care related to pregnancy, childbirth, or a related medical condition itself.

4. Pregnancy, Childbirth, or Related Medical Conditions

The Regulation clarifies what constitutes “pregnancy or related medical conditions.” The Regulation includes examples of those terms such as uncomplicated pregnancies, vaginal deliveries, cesarian sections, miscarriage, stillbirth, abortion, postpartum depression, edema, placenta previa, and lactation. The Regulation also clarifies that those terms are not limited to current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception), labor, or childbirth.

5. Reasonable Accommodations Requests

An employee does not need to use any magic words or specific format to request accommodation. An employee can communicate with anyone in the entity who regularly directs the employee’s tasks.

Employers may ask for documentation from pregnant employees seeking accommodation under the PWFA, but it must be reasonable to determine the need for workplace adjustments. The Regulation provides a definition of reasonable documentation limiting it to the minimum documentation that is sufficient to:

(a) confirm the physical or mental condition;

(b) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and

(c) describe the change or adjustment at work needed due to the limitation.

Employers are also required to comply with the ADA’s requirements to keep medical documents and information about employees confidential.

6. Undue Hardship

The PWFA aligns with the ADA’s concept of “undue hardship,” allowing employers to claim hardships based on any action that fundamentally alters the nature or operation of the business or is unduly costly or difficult when considering several factors.

The Regulation clarifies the standards for determining undue hardship when accommodating employees. It divides undue hardship factors into temporary suspension of essential functions and predictable assessments. The former considers factors like the duration of essential function suspension and work availability with accommodation. Predictable assessments cover accommodations the EEOC deems reasonable, such as breaks or minor workplace modifications, which are typically low-cost and temporary.

What Does this Mean for Employers?

The PWFA complements Title VII, the ADA, and other current anti-discrimination laws in various aspects. Employers need to be vigilant about potential violations in numerous situations. Here are some examples:

• An employer may be able to deny accommodations only if they can meet the undue hardship standard. Employers need to carefully consider alternative accommodations before claiming undue hardship to avoid violations.
• An employee’s unilateral withdrawal from or refusal to participate in the interactive process can constitute sufficient grounds for failing to provide reasonable accommodation on employer’s part. Employers should take reasonable steps to proactively avoid legal problems.
• Failure to provide accommodation due to delay in providing supporting documents caused by the difficulty an employee faces in obtaining information from a health care provider might result in violation if employer fails to provide interim reasonable accommodation.
• An unnecessary delay in making a reasonable accommodation, including in responding to the initial request, in the interactive process, or in providing the accommodation may result in a violation of the PWFA if the delay constitutes an unlawful failure to make reasonable accommodation.

 What Steps Should Employers Consider Taking?

Now that the Regulation is effective, employers must swiftly pivot towards compliance. Beyond immediate awareness, employers should consider taking proactive steps such as:

• Conducting comprehensive reviews of existing policies, providing necessary training to management and HR personnel;
• Ensuring open channels for accommodation requests from employees;
• Updating internal policies and procedures for handling accommodation requests
• Reviewing job descriptions to ensure clarity regarding essential functions; and
• Communicating with legal counsel to stay abreast of any further developments or clarifications of law.

By taking proactive measures now, employers can mitigate potential risks of non-compliance and cultivate a work environment that prioritizes the well-being and rights of all their employees.

BHGR’s Employment Group is here to help. Our attorneys can provide employers with guidance and support throughout this transition period as well as tailored advice related to the specific needs of employers with employees who are pregnant, have given birth, or have related conditions. Please contact Kathleen Alt, Josh Marks, Sonia Ramirez Anderson or Abbey Derechin for assistance with your employment needs today.