Pregnant Workers Fairness Act

The EEOC recently issued a final rule on the Pregnant Workers Fairness Act (“PWFA”), which becomes effective on June 18, 2024.  The final rule provides clarity on who is covered, the types of conditions covered, how to request an accommodation and what documentation can be requested by the employer. 

The PWFA, which took effect in 2023, applies to most employers with 15 or more employees.  Under the PWFA, employers are required to provide reasonable accommodations to qualified employees or applicants with a known physical or mental limitation related to pregnancy, childbirth or related medical conditions unless the accommodation would cause an undue hardship to the employer.

A qualified employee or applicant is one who can perform the essential functions of the job with or without the accommodation.  However, an employee can still be qualified if it is unable to perform an essential function of the job if the inability is temporary and the inability to perform the essential function of the job can be reasonably accommodated.

Pregnancy and childbirth include “current pregnancy, past pregnancy, potential or intended pregnancy (infertility, infertility treatment and the use of contraception).”  Related medical conditions are extensive and include lactation, miscarriage, stillbirth, choosing to have or not to have an abortion, preeclampsia and gestational diabetes.  Other conditions may or may not be related to pregnancy or childbirth depending on the specific facts and circumstances. 

The final rule lists numerous examples of reasonable accommodations and considers the following 4 types of workplace modification de facto reasonable accommodations:  (1) allowing an employee to carry or keep water nearby and drink, as needed; (2) allowing an employee to take additional restroom breaks, as needed; (3) allowing an employee whose work requires standing to sit and vice versa, as needed; and (4) allowing an employee to take breaks to eat and drink, as needed. 

An employer cannot require the employee to take paid or unpaid leave if another reasonable accommodation is available.
Like the ADA, employers must engage in the interactive process to identify and make reasonable accommodations.

Employers can ask for documentation when it’s reasonable under the circumstances, but should not request documentation when: (1)  the limit and need for an accommodation is obvious; (2) the employer already has sufficient information to evaluate the request; (3) the request is for a de facto reasonable accommodation; (4) the request is for a lactation accommodation; or (5) the requested accommodation is available to employees without limitations under PWFA pursuant to the employer’s policies or practices without supporting documentation. 

Employers should be aware that there are other federal and state laws that may be implicated by an employee or applicant’s pregnancy, childbirth or related medical conditions.

We recommend that employers consider taking the following steps to ensure compliance with PWFA: 

Please contact us if you have any questions about PWFA compliance.