EEOC Guidance on How to Navigate the Pregnant Workers Fairness Act

By Alexandra (Sasha) Chepov and Oyvind Wistrom - Lindner & Marsack, S.C.

April 24, 2024

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued its final regulation to carry out the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023. The regulation will go into effect on June 18, 2024.
 
By way of background, the PWFA requires covered employers to provide a “reasonable accommodation” to a qualified employees’ or applicants’ 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. Notably, the PWFA only applies to accommodations.
 
As the PWFA applies to private and public sector employers that have 15 or more employees, it is critical that employers understand how to navigate the complexities of the PWFA and the accompanying regulation.
 
What is a “qualified” employee or applicant under the PWFA?
 
Under the PWFA, employers are obligated to provide a reasonable accommodation to a “qualified” employee or applicant. A pregnant applicant or employee can be “qualified” in two ways:

1.    The employee or applicant can perform the “essential functions,” or fundamental duties, of the job with or without a reasonable accommodation.
2.    If the employee cannot perform the essential functions of the job with or without a reasonable accommodation, an employee may still be “qualified” under the PWFA so long as:

•    The inability to perform the essential function is “temporary,”
•    The employee could perform the functions “in the near future,” and
•    The inability to perform the essential functions can be reasonably accommodated.

If an employee does not satisfy the criteria above, then they are not protected by the PWFA.
 
What is a “known limitation” under the PWFA?
 
Under the PWFA, “known limitation” means the employee or their representative has communicated to the employer that they have a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” While the burden is on the employee to notify their employer of a limitation covered by the Act, they need not use any specific language to do so.
 
The regulation provides the following examples of a “pregnancy, childbirth, or related medical condition:” pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.
 
The regulation also provides that an employer may also need to provide reasonable accommodations for an employee’s or applicant’s known limitations relating to abortion. Further, an employee does not need to be pregnant to be covered by the PWFA’s coverage. The regulation provides that accommodations for an employee’s physical or mental conditions related to, affected by, or arising out of infertility and fertility treatments may be protected under the PWFA, absent undue hardship. However, whether a reasonable accommodation must be provided to an employee undergoing fertility treatments depends on the facts of the case, including whether the infertility treatments are sought by an employee with the capacity to become pregnant for purposes of becoming pregnant.
 
Similar to the mandate of the Americans with Disabilities Act (ADA), once an employer knows of a limitation covered by the PWFA, the employer should engage in an “interactive process” with the employee or applicant to determine whether a reasonable accommodation can be provided.
 
What is a “reasonable accommodation” under the PWFA?
 
As with most federal discrimination laws, a “reasonable accommodation” is a change in the work environment or the manner in which things are typically done at work. Given the evolutionary nature of a pregnancy, generally spanning 40 weeks, a qualified employee or applicant may need different accommodations at various times throughout the pregnancy or after birth.
 
Whether an accommodation is “reasonable” is largely a case-by-case determination. However, an employer does not have to provide a reasonable accommodation under the PWFA if doing so would cause the employer an “undue hardship.” An “undue hardship” under the PWFA means a significant difficulty or expense.
 
While there are many accommodations that may exist, the regulation provides the following examples of potential accommodations that may need to be provided to a qualified employee under the PWFA:
 
•    Providing additional, longer, or more flexible breaks to drink water, eat, rest, or use the bathroom.
•    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 (likely to accommodate morning sickness).
•    Temporarily reassigning the employee to a different position.
•    Temporarily suspending one or more essential functions of a job.
•    Offering light duty work or help with lifting or other manual labor.
Notably, employers covered by the PWFA, may be required to provide an employee leave to recover from childbirth or other medical conditions related to pregnancy or childbirth, even if the employer is not covered by the federal Family Medical Leave Act.
 
Next Steps
 
While the passage of these PWFA and the EEOC’s corresponding regulation expand the rights and protections afforded to pregnant employees or applicants, employers now bear the burden of navigating additional requirements and restrictions. The purpose of this informational notice is to provide a brief overview of that provided in the regulation. However, it is not all encompassing.
 
As the effective date of the regulation corresponding to the PWFA is approaching, employers should consider implementing a policy pertaining to reasonable accommodations for pregnant workers, and revising their current policies that may be affected by the PWFA.
 
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