EEOC issues regs for Pregnant Workers Fairness Act – Technologist

The Equal Employment Opportunity Commission (EEOC) recently issued regulations and interpretive guidance to implement the Pregnant Workers Fairness Act (PWFA), which requires all employers with 15 or more employees to reasonably accommodate workers with known limitations related to pregnancy, childbirth, or related medical conditions. The regulations take effect on June 18, 2024 (89 Fed Reg 29096, April 19, 2024).

As we previously reported, the PWFA took effect on June 27, 2023. The statute itself is relatively succinct, so the regulations and interpretive guidance provide important insights as to how the EEOC will enforce the statute. The text of the rule begins here. Here are some of the key points:

Pregnancy, childbirth, or related medical conditions: The EEOC defines this very broadly, with numerous examples, including fertility treatment, termination of pregnancy, gestational diabetes, and postpartum depression. The right to reasonable accommodation only applies to employees who are affected by their own pregnancy, childbirth, or related medical conditions—it doesn’t apply to employees who need to care for a family member with such a condition.

Limitation: A covered limitation is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. A limitation under the PWFA doesn’t have to substantially limit a major life activity—it may be minor, modest, or episodic.

Known to the employer: The limitation must be communicated to a supervisor, to a manager, to someone who directs the worker’s tasks, to HR, or by following the steps in the employer’s policy to request an accommodation. A verbal communication is sufficient to put an employer on notice, and the employer cannot require the worker to use a specific form. The communication can be made by the worker or by their representative, such as a friend, family member, union representative, or attorney.

Qualified employee: The employee must be “qualified” in order to be entitled to a reasonable accommodation. “Qualified” has two meanings:

• One meaning is that the worker can perform the essential functions of the job, with or without a reasonable accommodation. This is similar to the analysis under the Americans with Disabilities Act (ADA). If leave is granted, this assessment looks at whether the worker can do the essential functions after returning from leave.
• Another meaning is that the worker cannot perform the essential functions but: (1) the inability to perform those functions is temporary; (2) they will be able to perform the essential functions in the near future (which is presumed to be true for a pregnant employee, based on a full-term pregnancy lasting approximately 40 weeks); and (3) the inability to perform the essential functions can be reasonably accommodated.

The EEOC says that if the requested accommodation is a leave of absence, only the first meaning is relevant. The interpretive guidance provides five examples of what it means to be “qualified.”

Ability to perform essential functions in the near future: The interpretive guidance says the determination of the ability to perform essential functions “in the near future” is measured separately for each employment decision. For example, during pregnancy it may be necessary to temporarily suspend a lifting requirement, while after childbirth an employee will likely need time off and/or accommodation for lactation.

Reasonable accommodations: Accommodations that are considered reasonable under the PFWA are much broader than accommodations that are considered reasonable under the ADA, because the PFWA allows temporarily suspending the essential functions of a position. This may mean that the employee performs the remaining functions of their position or other arrangements such as taking on different duties, temporarily transferring to a different job, or participating in their employer’s light or modified duty program. Other principles related to reasonable accommodations include:

• Unnecessary delay in providing accommodations is a violation of the PWFA.
• When choosing among effective accommodations, you must choose an accommodation that allows the worker to “attain the same level of performance, or to enjoy the same level of benefits and privileges as are available to the average employee without a known limitation who is similarly situated.”
• If multiple effective accommodations are available, you should consider the worker’s preferred accommodation, but the choice ultimately is up to you as the employer.
• You can’t require the worker to accept an accommodation that wasn’t arrived at through the interactive process. Failure to engage in the interactive process isn’t a violation of the PWFA, but it poses a risk of liability for failing to provide a reasonable accommodation that was available and wouldn’t have caused an undue hardship.
• If the accommodation is a leave of absence, production standards may need to be prorated.
• Employees can request accommodations related to lactation beyond the 12-month time period authorized in the “Providing Urgent Maternal Protections for Nursing Mothers Act” (PUMP Act).

The EEOC’s interpretive guidance offers numerous examples of reasonable accommodations.

Undue hardship: Employers don’t have to provide a reasonable accommodation if it would cause an undue hardship to the business or its operations. This is defined as significant difficulty or expense, the same as under the ADA. Undue hardship must be assessed individually, on a case-by-case basis. The EEOC’s interpretive guidance offers several examples of analyzing undue hardship.

Four accommodations that generally shouldn’t cause undue hardship: The EEOC has identified four job modifications that it presumes won’t impose an undue hardship, so it expects the individualized assessment of reasonableness to be simple and straightforward. These include allowing an employee to:

• Carry or keep water near and drink, as needed;
• Take additional restroom breaks, as needed;
• Sit if their work requires standing or to stand if their work requires sitting, as needed; and
• Take breaks to eat and drink, as needed.

Documentation: The EEOC significantly restricts employers’ ability to request medical verification under the PWFA. Employers may request supporting documentation under the PWFA only if it is reasonable to do so, and only if the documentation itself is reasonable. Employers cannot require workers to complete specific forms that ask for information regarding “impairments” or “major life activities” because those are disability inquiries that aren’t job-related and consistent with business necessity (and therefore violate the ADA). It isn’t reasonable to request documentation when:

• The physical or mental condition and the needed adjustment are obvious and the worker provides self-confirmation (which may be as simple as a verbal statement);
• The employer already has sufficient information;
• The worker is pregnant, seeks one of the four presumptively reasonable work modifications, and provides self-confirmation;
• The reasonable accommodation is related to pumping at work or a time to nurse an infant during work hours (where the regular location of the employee’s workplace makes nursing during work hours a possibility because the child is in close proximity), and the employee provides self-confirmation; or
• The requested accommodation is available to other workers who aren’t required to submit supporting documentation pursuant to the employer’s regular policies.

In situations where it is reasonable to request documentation, you may ask a health care provider to describe the worker’s limitation, verify that it is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” and describe the change or adjustment needed at work and the expected duration. See the EEOC’s examples of reasonable documentation.

Benefits during leave: The EEOC’s interpretive guidance says any obligation to maintain health insurance benefits during a worker’s leave under the PWFA depends on the extent that the employer does so for other employees in a similar leave status, such as paid or unpaid leave.

Tips: Employers in California, Oregon, and Washington are subject to state laws requiring accommodation of conditions related to pregnancy, childbirth, and related medical conditions, so it may be necessary to consider both state law and the PWFA, because a covered employee will be entitled to whichever rights are most generous. The EEOC’s guidance specifically cites Washington’s Healthy Starts Act, which in some ways is more generous than the PWFA because it specifies that the undue hardship defense isn’t available for accommodations related to restroom breaks, eating and drinking in the workplace, added seating or more frequent sitting, or lifting limitations over 17 pounds. In contrast, the PWFA always allows an undue hardship defense (although it will be extremely rare for requests related to drinking water, taking additional restroom breaks, sitting/standing, and taking breaks to eat and drink).

In other areas, the PWFA may be more generous than these state laws, however, because it may be reasonable under the PWFA to temporarily eliminate an essential function of the employee’s job and because the EEOC presumes that the ability to perform essential job functions within the 40-week duration of a full-term pregnancy is presumed to be in the “near future.” Contact your Vigilant Law Group employment attorney for assistance if you’re uncertain whether you can accommodate a change in job duties or a request for leave from a worker who is affected by pregnancy, childbirth, or related medical conditions. We will be updating our Legal Guide, Pregnancy and Disability with the PWFA requirements.