HR Guide To Pregnant Workers Fairness Act: New PWFA Law and New Regulations

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) released their long-awaited final rule detailing the implementing regulations of the Pregnant Workers Fairness Act (PWFA). The final rule, spanning 408 pages, was published in the Federal Register on April 19, 2024, and becomes effective sixty (60) days thereafter on June 18, 2024. The PWFA requires a covered entity to make reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity. Covered entities generally include public and private employers with 15 or more employees, unions, employment agencies, and the Federal Government.

While the PWFA went into effect on June 27, 2023 (see our previous compliance alert), the regulations released by the EEOC will serve to provide additional guidance for employers, attorneys and the EEOC in ensuring compliance with the law. The EEOC received over 100,000 comments during the 60 day notice and comment period from August 11, 2023 through October 10, 2023.

The Final Rule largely reflects the Notice of  Proposed Rulemaking that was issued in August 2023.

The EEOC has released resources to assist employers with understanding and complying with the new regulations including:

• Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA), which provides the highpoints of the regulations for quick reference by employers and
• What You Should Know About the Pregnant Workers Fairness Act, which lists important terms and conditions in a simple question and answer format for employers to easily find the topic or circumstance which they may require additional information about.  

The full text of the expansive regulations can be found here. The Final Rule includes Interpretive Guidance in addition to the regulations, which represents the EEOC’s interpretation of the issues addressed in the law and will be used by the EEOC in enforcing the PWFA. This guidance includes several examples of situations which may arise for pregnant workers in the workplace and suggests practical actions for covered entities and employees to take to assist with compliance.

Some relevant definitional terms and provisions for employers include:

• “Qualified employee”: A qualified employee can be either an employee or applicant who can perform the essential functions of the employment position (with or without  reasonable accommodation) as defined by the ADA, or the PWFA permits qualification for an employee or applicant even if they cannot perform the essential functions of the employment position if such inability is “temporary,” the employee could perform such functions in the near future, and the inability to perform the essential functions can be reasonably accommodated.
  • For employees currently pregnant, 40 weeks (the typical length of a pregnancy) is considered to be “in the near future”, though such period is not  automatic. Whether the employee could perform the essential function(s) “in the near future” in situations other than when the employee is pregnant is determined on a case-by-case basis.
    
•  “Known limitation” means that the physical or mental condition that is the limitation must be communicated by the employee or his/or her representative to the employer. The known limitation of an employee related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, is limited to the specific employee in question. There is no obligation for employers to provide a reasonable accommodation to an employee based on an individual’s association with someone else with a PWFA-covered limitation, or provide accommodations for bonding or childcare.
  
• Requests for information or documentation. Information or documentation from the employee or applicant’s healthcare provider is not necessary in many instances, and a discussion with the employee or applicant is likely sufficient. Further, an employer may only seek supporting documentation if it is reasonable under the circumstances. The final rule provides examples of when it would be unreasonable for an employer to require documentation. The ADA’s requirement to keep all medical information received by an employer concerning an employee or applicant applies as well to the PWFA.
  
• “Pregnancy, childbirth, or related medical conditions” is defined as pregnancy or childbirth of the specific employee in question and include, but are not limited to, current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including vaginal and cesarean delivery). “Related medical conditions” are medical conditions relating to the pregnancy or childbirth of the specific employee in question. The Rule provides an extensive, but non-exhaustive list of related medical conditions including abortion, pre-term labor, preeclampsia, anemia, sciatica, infection, antenatal and postpartum anxiety, depression, or psychosis, among others.
  
• A list of specific examples of reasonable accommodations under the PWFA includes:
  • Frequent breaks;
  • Sitting/Standing;
  • Schedule changes, part-time work, and paid and unpaid leave;
  • Telework;
  • Parking;
  • 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.
    
• A list of four (4) simple modifications that will “in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by a pregnant employee”:
  • allowing an employee to carry or keep water near and drink, as needed;
  • allowing an employee to take additional restroom breaks, as needed;
  • allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
  • allowing an employee to take breaks to eat and drink, as needed.

Employers should carefully review the regulations, interpretive guidance, technical assistance provided by the EEOC and consult with counsel as necessary to determine their responsibilities. Employers should also review their current policies and procedure and make any revisions necessary to handle requests for accommodations.

Legal Challenges:

Since the Final Rule’s publication, seventeen states have now filed suit seeking to enjoin the final regulations due to the inclusion of abortion within the rule’s broad definition of pregnancy related medical conditions for which employees and applicants may be entitled to a workplace accommodation (absent undue hardship). Employers should continue to monitor the situation for developments.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.