EEOC Announces the Final Rule Regarding Pregnant Workers

The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) issued a final rule and interpretive guidance to implement the PWFA, which will take effect on June 18, 2024. The PWFA requires a covered employer to provide a “reasonable accommodation” 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 will cause the employer an “undue hardship.” There is no requirement that the conditions arise to the level of disability under the Americans with Disabilities Act (“ADA”). The Rule broadly covers infertility, menstruation, endometriosis, fertility treatments, miscarriages and abortion.

The PWFA only applies to accommodations and does not supersede state or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. A qualified employee may still seek relief under Title VII, the ADA, the FMLA, and the PUMP Act.

Definitions

The term “covered employer” means public and private employers that have 15 or more employees, including federal agencies, employment agencies, and labor organizations. A “qualified employee” is an employee who, with or without reasonable accommodation, can perform the essential functions of the job. An employee who cannot perform an essential function is considered “qualified” if (1) the inability to perform the essential function is for a temporary period; (2) the employee will be able to perform the essential function in the near future; and (3) the employer can reasonably accommodate the employee’s inability to perform the essential function.

“Limitation” means “a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” Limitations can include an impediment, minor or modest limitations, or episodic (i.e., migraines or morning sickness). It can also include actions for their health or the health of their pregnancy, such as limiting exposure to certain chemicals, avoiding heat, or limiting or avoiding certain physical tasks. It also applies to attending health care appointments for the pregnancy, childbirth, or related medical condition. A “known limitation” means the employee or their representative has communicated to the employer about the limitation.

Reasonable Accommodations

Covered entities must provide reasonable accommodations to employees' or applicants' known limitations related to pregnancy, childbirth, or related medical conditions, unless it causes an undue hardship on the business operation. Undue hardship is defined as causing significant difficulty or expense.

Besides failing to make a reasonable accommodation, covered employers are also prohibited from:

• 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); and
• Coercing individuals who are exercising their rights or helping others exercise their rights under the PWFA.

Examples of “reasonable accommodations” 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; or
• Light duty or help with lifting or other manual labor.

Leave

Leave is also considered a reasonable accommodation under the PWFA and can be granted for any known limitation related to pregnancy, childbirth, or related medical conditions, including health care, treatment, and recovery. Accommodations are not limited to regular appointments or monitoring; however, the limitation must be of the specific employee in question, and the PWFA does not create a right to accommodations based on association with someone else.

An employer can choose leave as a reasonable accommodation only if the employee requests it or there is no other reasonable accommodation that can be provided without undue hardship. If an employee requests leave, the employer must first determine whether the employee is entitled to leave under the employer’s policy, FMLA, and/or state or local laws. If the request for leave goes beyond these parameters, it constitutes a request for a reasonable accommodation under the PWFA, requiring an undue hardship analysis.

Process

First, the employee must communicate with their employer that they have a limitation—a  physical or mental condition related to, arising out of, or affected by pregnancy, childbirth, or a related medical condition—and request a change or adjustment to their working conditions due to the limitation. The employer should then engage in an “interactive process” with the employee, which means the employer and employee should communicate about the known limitation and the adjustment or change needed at work. The employer must respond promptly to accommodation requests unless it causes undue hardship to the employer’s business.

Employers may only obtain medical documentation if it is reasonable under the circumstances in order to determine whether employee has a qualifying condition and needs a change or adjustment at work due to their limitation. Employers may not seek documentation where the limitation and need for accommodation is obvious or if the limitation is already known by the employer.

Employers may not seek documentation for allowing an employee:

• To carry and drink water all day
• To take additional restroom breaks
• To sit and/or stand
• To take breaks to eat or drink, as needed; or
• For lactation accommodations

Employers can only request the minimum reasonable documentation that is sufficient to confirm the physical or mental condition that underlies the employee’s limitation, that:

• Confirms the physical or mental condition. This means providing a simple statement of the physical or mental condition (e.g., back injury, swollen ankles, need to avoid certain chemicals, lifting restriction, need for rest, vomiting, need to attend health care appointments). This can be a modest or minor impediment or problem and does not need to be a medical diagnosis;
• Confirms that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Pregnancy, childbirth, or related medical conditions do not have to be the sole, the original, or a substantial cause of the physical or mental condition; and
• Describes the adjustment or change at work that is needed due to the limitation (e.g., no lifting more than 20 pounds for three months, the approximate number and frequency of health care appointments, the estimated time off for recovery, additional safety gear, work functions that should be suspended and for how long, or a later start time).

Similar to the ADA, employers must keep this medical information confidential and separate from an employee’s personnel file. Employers should consider whether to implement policies and forms in order to ensure compliance in advance of the effective date.

For additional information or assistance regarding the PWFA, please contact Burke Warren attorneys Rachel Bossard at 312-840-7029 / rbossard@burkelaw.com or Christine Eduardo at 312-840-7046 / ceduardo@burkelaw.com.