EEOC Issues Regulations Implementing Pregnant Workers Fairness Act

The Equal Employment Opportunity Commission (EEOC) has now published its final rules implementing the Pregnant Workers’ Fairness Act (PWFA). That Act, which requires employers to provide reasonable accommodations to employees whose abilities are limited because of pregnancy, went into effect on June 27, 2023. The EEOC regulations are effective June 18, 2024.

Under the PWFA, employees must be provided reasonable accommodations for physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. “Related conditions” include current, past, and future pregnancy, lactation and pumping, contraception, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and abortion. The conditions covered under the Act do not need to rise the level of a disability; a covered condition could be modest, minor, or episodic. Note that the Act focuses on the medical condition of the employee: unlike the Family and Medical Leave Act (FMLA), the PWFA does not provide accommodations to care for family members, or for bonding with a newborn.

Once an employee has requested a pregnancy-related accommodation, either verbally or in writing, the employer must engage in an interactive process with the employee to determine potential accommodations. Employers are expected to act promptly, without unnecessary delay, especially with respect to obvious accommodations, such as the need for additional bathroom breaks.  Medical certification should not be demanded for such basic requests.

The PWFA covers all employers, private and public, with 15 or more employees. This is more expansive than the FMLA, which only covers employers with 50 employees working within a 75-mile radius, Additionally, the PWFA does not require that employees have worked a year before becoming eligible, as does the FMLA.

Reasonable Accommodations

The Act applies to two categories of qualified employees:  the first is employees who can perform the essential functions of their jobs with or without reasonable accommodation. The PWFA adheres to the Americans with Disabilities Act’s (ADA) definition of “reasonable accommodation,” which requires an individualized assessment of the request amid current circumstances. Potential accommodations include frequent breaks, the ability to sit or stand as needed, schedule changes, paid or unpaid leave, remote work, parking closer to the worksite, modifications to an environment or equipment, and new equipment or uniforms.

Importantly, the EEOC regulations identify four accommodations as “predictable assessments” that will not impose an undue hardship on the employer in almost all cases. These include permission to carry water bottles, additional restroom breaks, sitting and standing as needed, and breaks to eat and drink as needed. An employer’s delay in granting these accommodations will almost always violate the PWFA as an unnecessary delay, according to the regulations.

Employers should also expect leave requests from covered employees. These would include time off for doctor’s appointments, morning sickness, birth of the child or post-partum issues. The employer need not provide paid leave beyond its own PTO policies. It should be noted that, unlike the FMLA, the PWFA does not limit leave to 12 weeks. Under certain conditions, supported by proper medical certification, an employee may be eligible for more than 12 weeks of leave under the PWFA, unless that accommodation poses an undue hardship for the employer.

Temporary Suspension of Essential Functions

The second type of PWFA-qualified employee is one who is unable to perform one or more essential functions of her job for a “temporary” period, but who will be able to resume that function “in the near future.”  Employers need to grant such requests if they can be reasonably accommodated without undue hardship to the employer. This differs significantly from the ADA, which does not relieve an employee of essential job functions as an accommodation for his or her disability.

According to the PWFA regulations, a “temporary” period lasts for a limited time, and is not permanent, but may extend beyond the near future. “The near future” generally means 40 weeks in the case of a current pregnancy; however, the term is left to be defined on a case-by-case basis for other conditions and is not an indefinite period.

Under the Act, an employer can accommodate an employee by suspending an essential function of the employee’s job while she continues other functions of that job, is assigned other tasks as replacement work, or performs the functions of a different job. For example, a pregnant employee of a gym may be temporarily relieved of her essential job duty to move heavy workout equipment, and instead be assigned additional clerical tasks.

Denying an Accommodation for Undue Hardship

Notably, granting an employee’s request is not required under the PWFA if no reasonable accommodation can be made, or if suspension of an essential function would cause the employer undue hardship, such as significant difficulty or expense.

An employer might demonstrate an undue hardship in granting an accommodation by pointing to the nature and net cost of providing the accommodation, the number of people employed at a particular facility, the overall size and financial resources of a business, and the impact an accommodation would have on the facility, according to the regulations.

This analysis also applies to the temporary suspension of an employee’s essential job function. Whether that causes an undue hardship may depend on the length of time the employee will be unable to perform the essential function, whether there is alternative work for the employee, the frequency of the duty in question, whether other employees in similar positions have had essential duties paused, and whether the task can be postponed, left unperformed, or taken over temporarily by another employee or third party.

While many aspects of the PWFA may seem familiar to employers accustomed to considering ADA accommodations, or to granting leave under the FMLA, it is important to understand that the three Acts contain different requirements. Feel free to contact any of Nemeth Bonnette Brouwer’s attorneys with questions regarding the impact of these three laws with respect to pregnant employees.

The entire rule is available here: Federal Register : Implementation of the Pregnant Workers Fairness Act.