What Employers Need To Know About the EEOC’s Pregnant Workers Fairness Act Regulations

The Equal Employment Opportunity Commission (EEOC) released its final rule implementing the Pregnant Workers Fairness Act (PWFA) on April 15, 2024. The regulations, including an appendix of interpretive guidance that will guide the EEOC’s enforcement of the PWFA, become effective on June 18, 2024, 60 days after publication in the Federal Register.

PWFA Overview

The PWFA went into effect on June 27, 2023. It was enacted to address a gap under Title VII, the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA), under which pregnant workers may not have been receiving reasonable accommodations in some situations.

While the PWFA has been in effect for almost a year—the EEOC’s final rule and the interpretative guidance (all 125 pages) provide additional guidance and insight into how the EEOC will seek to enforce the PWFA going forward. We have highlighted here some of the key issues that employers may grapple with as they seek to comply with the PWFA.

Employers Covered by the PWFA

The PWFA applies to all employers (public and private) with 15 or more employees.

Core Legal Requirements of the PWFA

The PWFA requires covered employers to make reasonable accommodations for:

1. A qualified employee or applicant with a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions;

2. Absent undue hardship.

Employees and applicants are eligible for accommodations under the PWFA immediately, with no requirement to have worked a specific length of time prior to eligibility.

The PWFA also prohibits retaliation for requesting or using a reasonable accommodation and prohibits denying employment opportunities based on an applicant’s need for a reasonable accommodation. It does not replace federal, state or local laws that are more protective of workers.

Reasonable Accommodations and Undue Hardship

Like accommodations under the ADA, a reasonable accommodation under the PWFA generally means a change in the work environment or how things are usually done. Similarly, an undue hardship means significant difficult or expense, mirroring the definition under the ADA.

The PWFA regulations include many examples of reasonable accommodations, including changing a work schedule, such as having shorter hours, part-time work or a later start time; telework; and temporary reassignment. The regulations also include a list of accommodations that will be reasonable and will not impose an undue hardship in virtually all cases (predictable assessments):

• allowing an employee to carry or keep water near and drink, as needed;
• allowing an employee to take additional restroom breaks, as needed;
• allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
• allowing an employee to take breaks to eat and drink, as needed.

Additionally, under the PWFA, accommodating a worker’s inability to perform one or more essential job functions by temporarily suspending the requirement that the employee perform the function may be a reasonable accommodation if the inability to perform it is temporary and the worker could perform it in the near future (read more about this below).

In addition to the undue hardship factors provided under the ADA and its regulations, the PWFA regulations include additional factors that may be considered when determining if the temporary suspension of an essential function causes an undue hardship:

• consideration of the length of time that the employee will be unable to perform the essential function(s);
• whether there is work for the employee to accomplish;
• the nature of the essential function, including its frequency;
• whether the employer has provided other employees in similar positions who are unable to perform the essential function(s) of their positions with temporary suspensions of those functions and other duties;
• if necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s) in question; and
• whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

The EEOC has provided many different examples; however, we found the following to be instructive as it relates to telework:

Example #26/Telework: Gabriela, a billing specialist in a doctor’s office, experiences nausea and vomiting beginning in her first trimester of pregnancy. Because the nausea makes commuting extremely difficult, Gabriela makes a verbal request to her manager stating she has nausea and vomiting due to her pregnancy and requests that she be permitted to work from home for the next two months so that she can avoid the difficulty of commuting. The billing work can be done from her home or in the office.

EEOC Analysis: 

1. Known limitation and request for reasonable accommodation: Gabriela’s nausea and vomiting is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Gabriela needs an adjustment or change at work due to the limitation; Gabriela has communicated the information to the employer.

2. Qualified: Gabriela can perform the essential functions of the job with the reasonable accommodation of telework.

3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship.

In each example, the EEOC goes through this three-step analysis, and it will be important for employers to do so too.

Takeaway. Under the PWFA, the EEOC will likely consider many accommodations to be “reasonable” where under a traditional ADA analysis, an employer may conclude that an accommodation cannot be made. Employers will need to be prepared to address accommodation requests, and when in doubt, should seek legal counsel.

Key Issues for Employers

The core requirements of the PWFA may not appear too intimidating at first glance, but let us break this down a little more.

Issue No. 1 – Expanded Definition of Qualified Employee. Employers must be aware that the term “qualified employee” includes two alternative definitions, one that mirrors the ADA and a second that is broader:

1. An employee who, with or without reasonable accommodation, can perform the essential functions of the employment position; or

2. An employee who cannot perform one or more essential functions of the job if (i) the inability to perform the essential function(s) is “temporary,” (ii) the worker could perform the essential function(s) “in the near future,” and (iii) the inability to perform the essential function(s) can be reasonably accommodated.

It is the second definition of qualified employee — essentially requiring the elimination of one or more essential functions from a worker’s job description for a temporary period — which might trip up employers. Under the PWFA, “temporary” means lasting for a limited time — it does not mean a permanent or indefinite period of time. “In the near future” generally means 40 weeks from the start of the temporary suspension of an essential function for a current pregnancy (the typical length of a full-term pregnancy). With respect to conditions other than a current pregnancy (e.g., post-pregnancy), the regulations do not include a definition for “in the near future.”

What does this mean for employers? Let us take a look at one of the examples from the interpretive guidance. One month into pregnancy, Akira, an employee in a paint manufacturing plant, is told by a medical provider that she should avoid certain chemicals during pregnancy. One of her essential functions involves regular exposure to these chemicals. Akira requests an accommodation that involves no exposure to these chemicals. The employer reviews other modifications but those modifications cannot eliminate exposure to these chemicals. Because Akira’s inability to perform the essential functions is temporary (i.e. the length of her pregnancy), the EEOC concludes in this example that the employer should suspend the essential functions that require exposure to chemicals while allowing her to do the remainder of the job. In other examples involving suspension of essential job functions, like lifting, the EEOC similarly concludes that providing the worker with light duty would be a reasonable accommodation.

Takeaway. Under the PWFA, employers should not automatically conclude an employee is not “qualified” where the employee is unable to perform the essential functions of the job. Rather, the employer will need to determine whether certain essential functions can be suspended until the restriction is lifted.

But remember, employers can still evaluate whether the suspension of the essential job functions will cause an undue hardship (looking at nature and frequency of the essential function, length of time the employee cannot perform the essential function, availability of others who can perform that essential function, and possibility that the essential function can be postponed or not completed at all during the temporary suspension.) 

Issue No. 2 – What is a “known limitation”? A “known limitation” is defined under the PWFA as any physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee has communicated to the employer, whether or not such condition meets the definition of disability under the ADA.

The “known” requirement simply means that the limitation has been communicated in some way to the employer. This could be through the employee or the employee’s representative. Additionally, just like the ADA, the EEOC takes the position that this communication need not be to the human resources department. Rather, if the employee has communicated the limitation in some way to a supervisor — that knowledge will be imputed to the employer.

A “limitation” may be minor or episodic and may be associated with an uncomplicated pregnancy (such as morning sickness). Or, the limitation could be a need related to maintaining health during pregnancy (such as the example above involve Akira’s need to avoid chemicals). Finally, the limitation could be the need for continued health care before, during or after the pregnancy. Here, the key is that the limitation is in some way connected to the pregnancy.

Takeaway. Employers should consider providing training and guidance to frontline supervisors and managers about what to do when they become aware of limitations that should be addressed through the accommodation process and how to involve the appropriate resource — whether that be human resources or legal to manage the process. This should help avoid the employer unwittingly disciplining the employee due to the known limitation.

Issue No. 3 – Broad Definition of Pregnancy, Childbirth and Related Medical Condition. The PWFA regulations include a broad definition of “pregnancy, childbirth, or related medical conditions,” including but not limited to:

• current pregnancy, past pregnancy, potential or intended pregnancy,
• infertility and fertility treatments,
• lactation (including breastfeeding and pumping),
• use of contraception,
• post-partum depression,
• menstruation and endometriosis, and
• termination of pregnancy, including by miscarriage, stillbirth or abortion (among many others).

“Related medical conditions” also includes both new conditions originating during pregnancy as well as pre-existing conditions that are exacerbated by pregnancy or childbirth.

Why do we see this as an issue? Going back to the key definition, the PWFA requires that employers provide reasonable accommodations to known limitations related to, affected by, or arising out of “pregnancy, childbirth, or related medical conditions.”  Because the terms “related to, affected by, or arising out of” are very broad terms and because the list of conditions potentially covered as a related medical condition is also broad — employers are going to need to be aware of obligations to engage in the interactive process, and to provide reasonable accommodations for pregnancy- or childbirth-related medical conditions for which accommodations may not have been previously considered under the ADA.

Takeaway. Consider that employees may share with a trusted supervisor that they are, for example, undergoing fertility treatments and will need time off for these (a covered treatment), or having a really hard time following the birth of a child that is impacting their ability to work (possibly post-partum depression, a covered condition), or just newly pregnant and having issues with morning sickness impacting their ability to get to work on time (a limitation arising from pregnancy). This supervisor may not know how to respond to the information shared with them nor how to properly handle time off requests. A good policy outlining an employee’s rights under the PWFA, along with supervisor training on how to best manage information coming to them from employees will go a long way in avoiding problems under the PWFA.

Issue No. 4 – The Limits on Supporting Documentation. Under the PWFA, employers have an obligation to engage in the interactive process — mirroring the interactive process under the ADA — as soon as they know of an employee’s limitations. The rule makes clear that employees do not need to use specific words to request an accommodation to begin the interactive process (meaning, a disclosure that the employee has a limitation relating to pregnancy is enough). Given the temporary nature of pregnancy-related conditions, the EEOC encourages employers to respond quickly to accommodation requests. An unnecessary delay in providing an accommodation may be a violation of the PWFA, even if the accommodation is eventually provided.

But, there are limits imposed on what information and documentation an employer may request. For example, employers may ask the expected duration of the requested modification as part of the interactive process. However, the additional supporting documentation that they can request is more limited than under the ADA. The EEOC has indicated that it expects that many PWFA accommodations can be granted after simple exchanges of information between employees and employers, and that supporting documentation will not be needed in many instances. Employers are only permitted to seek supporting documentation when it is “reasonable under the circumstances“ and, in those cases, may only request “reasonable documentation.” In general, this means the employer may only request documentation to:

• confirm the physical or mental condition;
• confirm that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and
• describe the adjustment or change at work that is needed due to the limitation.

Examples from the EEOC guidance include:

• When a pregnant employee asks for the temporary suspension of an essential function(s) that involves climbing ladders due to dizziness and the danger of falling — the employer may seek documentation to confirm that dizziness and increased risk relate to falling is affected by, or arising out of pregnancy, childbirth, or related medical conditions and to describe the change or adjustment needed, including how high the employee may climb, the types of actions the employee should avoid, and how long the modification will be needed.
• When an employee requests an accommodation for a known limitation but has only a vague idea of what type of accommodation would be effective and the employer also does not know of a potential accommodation, the employer may seek supporting documentation describing the adjustment or change at work needed due to the limitation to help identify the needed accommodation.

Under the regulations, employers may not seek supporting documentation when: (i) the employee’s limitation and the adjustment or change needed are obvious and the employee provides self-confirmation, (ii) the employer already has sufficient documentation, (iii) the employee seeks one of the modifications the EEOC has said are “predictable assessments,” (iv) when the accommodation is related to pumping or lactation and the employee provides self-confirmation, or (v) when the accommodation is available to other employees without supporting documentation.

Takeaway. Employers should generally avoid using a traditional “non-FMLA ADA” health care certification form that they may have used in the past to request information under the ADA. While these forms may still be used for nonpregnancy-related disability inquiries to determine an accommodation under the ADA — most generally request more information than is permitted under the final rule. We recommend that you work with your legal counsel to either create a new form or checklist for human resources to use when evaluating accommodation requests under the PWFA.

Conclusion

While the EEOC has been accepting charges of violations of the PWFA since June 27, 2023, the regulations provide employers a clearer vision of how the law will be enforced. Employers should familiarize themselves with the regulations, including the EEOC’s numerous examples in its interpretive guidance.

As noted in the takeaways above, employers should also review and revise their existing accommodation policies, provide training to supervisors, managers and human resources, and review and revise existing accommodation forms. Reach out to one of our Fredrikson employment lawyers for any assistance or questions you might have relating to the PWFA!