The EEOC recently issued its final regulations interpreting the Pregnant Workers Fairness Act (the "PWFA"). The final rule, which becomes effective June 18, 2024, provides clarity regarding: (1) who and what types of limitations and medical conditions are covered under the PWFA; and (2) what accommodations are reasonable. The bottom line is that employers will be hard-pressed to justify denial of accommodations to employees whose activities are limited due to pregnancy, childbirth, or related medical conditions.
Who may request a reasonable accommodation under the PWFA:
The PWFA requires employers with 15 or more employees to provide "reasonable accommodations" for an employee or applicant's known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations will impose an undue hardship on the employer's business. An employee or applicant is "qualified" to request a PWFA accommodation if she cannot perform an essential function of the job for a temporary period, is expected to be able to perform the essential function "in the near future," and her inability to perform the essential function can be reasonably accommodated. The final rule defines "temporary" as "lasting for a limited time, not permanent, and may extend beyond 'in the near future.'" It also defines "in the near future" as "generally 40 weeks from the start of the temporary suspension of an essential function(s)." But it does not define "in the near future" for childbirth or related medical conditions, leaving this to be determined on a case-by-case basis, and noting only that "in the near future" does not mean indefinitely.
To properly request a reasonable accommodation, the employee or applicant must identify: (1) the limitation (the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions); and (2) establish that she needs an adjustment or change at work due to the limitation. Notice of the need for a PWFA accommodation can be conveyed verbally or in writing, can be expressed in plain language, and can come from a representative of the employee or applicant. Moreover, an employer may not request medical documentation unless it is reasonably required under the circumstances to determine if the employee has a qualifying condition and needs an adjustment or change at work due to the limitation.
Expansive covered conditions:
Covered conditions may be "modest, minor, and/or episodic," and do not need to meet the definition of "disability" under the ADA. What's more, "related medical conditions" can include not only new physical and mental conditions originating during pregnancy, but also pre-existing conditions that are exacerbated by pregnancy or childbirth. The rule's "non-exhaustive list" of conditions that can give rise to a request for accommodation under the PWFA includes: current pregnancy, past pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, postpartum depression, gestational diabetes, preeclampsia, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and having or choosing not to have an abortion, among other conditions.
Reasonable accommodations:
The final rule identifies numerous examples of reasonable accommodations related to modifications to the job application process and work environment, including:
- Frequent breaks;
- Seating for jobs that generally require standing and standing for jobs that generally require sitting
- Schedule changes, part-time work, and paid and unpaid leave;
- Telework;
- A reserved parking space;
- Light duty;
- Making existing facilities accessible or modifying the work environment;
- Job restructuring;
- Temporarily suspending one or more essential functions;
- Acquiring or modifying equipment, uniforms, or devices; and
- Adjusting or modifying examinations or policies.
The final rule also provides a non-exhaustive list of examples of accommodations relating to lactation, including space for pumping that is in reasonable proximity to a sink, running water, and refrigeration for storing milk.
Importantly, an employer need not make a reasonable accommodation if doing so would constitute an "undue hardship," which means a "significant difficulty or expense incurred by the covered entity." When an employee is temporarily unable to perform the job's essential functions, an employer should consider the following factors when determining if the temporary suspension of an essential function(s) causes an undue hardship: (1) the length of time that the employee will be unable to perform the essential function(s); (2) whether there is work for the employee to accomplish; (3) the nature of the essential function, including its frequency; (4) 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; (5) 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 (6) whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.
According to the final rule, there are certain accommodations that do not impose an undue hardship on the employer in virtually all cases: (1) allowing an employee to carry or keep water near 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 whose work requires sitting to stand, as needed; and (4) allowing an employee to take breaks to eat and drink, as needed.
An employer's next steps:
In the weeks before the final rule's June 18 effective date, employers should review their accommodation policies, consider whether changes are necessary, and ensure that all human resources employees and supervisors are aware of the employee's notice requirements and the employer's obligations under the PWFA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.