EEOC Issues Final Rule Outlining Employer Obligations Under the Pregnant Workers Fairness Act (PWFA) and New Guidance on Unlawful Harassment

On April 15, 2024, the Equal Employment Opportunity Commission (“EEOC”) issued a Final Rule that explains employers' obligations under the federal Pregnant Workers Fairness Act (“PWFA”). The Final Rule takes effect on June 18, 2024.

As previously discussed, the PWFA requires covered employers to make reasonable accommodations for 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.”  Unlike the ADA, the PWFA does not require a qualified applicant or employee to be disabled by a qualifying medical condition to be eligible for accommodation.

This article provides a brief summary of the Final Rule, which is lengthy and nuanced. Employers should seek advice from experienced employment law attorneys before the Final Rule takes effect.

Who Is Covered Under the PWFA?

The PWFA applies to public and private employers with 15 or more employees, as well as unions, employment agencies, and the Federal Government ("covered entities"). 

It also applies to "qualified" current employees, former employees, and job applicants of covered entities with "known limitations" due to a physical or mental condition arising from or relating to "pregnancy, childbirth, or related medical conditions." 

Each of these concepts is explained briefly below.

Who is Qualified?

An employee or applicant "qualifies" for PWFA protections if:

  • With or without reasonable accommodation, they can perform the essential functions of the employment position; or
  • Even if they cannot perform one or more essential functions of the job, the inability to perform the essential function(s) is (1) "temporary," (2) the employee could perform the essential function(s) "in the near future," and (3) the inability to perform the essential function(s) can be reasonably accommodated.

The second element of qualification is a dramatic change from the ADA, which never requires the suspension of essential functions.

For accommodations during pregnancy, the Final Rule defines "in the near future" as "up to 40 weeks.” For accommodations arising after pregnancy or with respect to other related medical conditions, "in the near future" is not defined. Instead, it will be evaluated based on whether the duration would cause undue hardship, as under the ADA.

Conditions Triggering Employers' Obligations Under the PWFA

"Pregnancy, childbirth, and related medical conditions" are not limited to an individual's current pregnancy or recovery from recent childbirth. Rather, these terms cover past, present, or future pregnancy or childbirth and a broad spectrum of other physical and mental health conditions, including those exacerbated by pregnancy or childbirth.   The Final Rule contains a complete definition of these terms and a list of “related medical conditions.”

As noted, PWFA requires accommodation for “limitations,” not “disabilities.”  A limitation requiring reasonable accommodation may involve: 

  • An impediment or problem that may be modest, minor, and/or episodic (such as migraines or morning sickness);
  • A need or problem related to maintaining the employee's health or the health of the pregnancy (such as not being around certain chemicals, not working in the heat, or limiting or avoiding physical tasks like lifting, bending, walking, standing, or running); or
  • Seeking health care related to pregnancy, childbirth, or a related medical condition itself.

Of course, some conditions will qualify as disabilities under the ADA, invoking the protections of both laws.

Communication Is Key

Accommodations are only required for “known limitations.”  The applicant or employee must tell the employer about the limitation giving rise to the need for accommodation – directly or through a representative such as a family member, friend, union representative, or health care provider. This makes it “known.”

This communication may be oral or in writing to the employee's supervisor, human resources department, or another member of management. Therefore, employer procedures dictating that accommodation requests be made in writing or submitted only to human resources will have to be changed. 

What Are “Reasonable Accommodation” and “Undue Hardship?”

A reasonable accommodation under PWFA is the same as under ADA, meaning “a change in the work environment or how things are usually done.” The Final Rule provides specific examples of possible reasonable accommodations under the PWFA, including basic accommodations that they assume will not cause undue hardship in most situations, which are:

  • Allowing an employee to carry or keep water near and drink it, 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.
  • Allowing an employee to take breaks to eat or drink, as needed.

Other accommodations suggested by the EEOC include, but would not be limited to:

  • Schedule changes, part-time work, and paid or unpaid leave.
  • Telework.
  • Closer parking (if parking is assigned).
  • 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.
  • Adjusting or modifying examinations or policies.

Undue Hardship

The PWFA follows the ADA's definition of "undue hardship," which refers to significant difficulty or expense to the employer’s operations. The Final Rule includes detailed information about the factors to be considered in this analysis. Because the PWFA introduces the potential need to temporarily remove essential functions (not required by ADA), factors for assessing undue hardship arising from temporary removal are also provided. These include, but are not limited to, whether there is other work for the employee to do, the feasibility of having other employees (including temporary hires) do the essential functions if removed, and others.

Interactive Process

The PWFA requires the employer to engage in an interactive process with the employee or applicant once the reasonable accommodation is requested (unlike the ADA, where the interactive process is only implied). The interactive process requires a prompt and good faith exchange of information and ideas and may include requiring the employee to provide supporting documentation, subject to Final Rule limits. The employer may suggest alternative accommodations. The employer may need to provide interim accommodations while decisions are being made.

As with the ADA, the employer has the ultimate discretion in choosing an effective accommodation. However, the PWFA prohibits employers from imposing an accommodation not identified through the interactive process or requiring an employee to take leave when another effective accommodation is available that would not cause an undue hardship.

Limitations on Supporting Documentation

The Final Rule limits the circumstances when an employer may seek medical documentation supporting a request for accommodation. First, the Final Rule prohibits employers from requesting documentation in the following circumstances:

  • When both the condition and the required change are obvious, and the employee confirms they have a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions;, and the adjustment or change at work is needed due to the limitation ("self-confirmation").
  • When the employer already has sufficient information to determine whether the employee has a qualifying limitation and needs an adjustment or change at work due to the limitation.
  • When the employee is pregnant and seeks to sit, stand, eat, drink, and/or have additional rest breaks and provides self-confirmation.
  • When the accommodation requested is related to time to express milk or nurse during work hours and the employee provides self-confirmation.
  • When the accommodation requested is available to employees who do not have known limitations under company policy without submitting supporting documents. 

In other circumstances, an employer may only request minimally sufficient documentation to determine whether the employee (or applicant) has (1) a physical or mental condition, (2) related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (limitation) and (3) needs a change or adjustment at work due to the limitation. Because of these strict limits, employers should not use ADA medical assessment forms or medical leave forms that ask for additional information.

Remedies for PWFA Violations

Remedies for qualified employees and applicants who allege violations of the PWFA are the same as those provided under Title VII, including reinstatement, front and back pay, compensatory and punitive damages, and reasonable attorneys' fees and costs.

New Guidance on Unlawful Harassment

The EEOC issued new enforcement guidance on harassment in the workplace on April 29, 2024, available here. This guidance comprehensively reviews all aspects of unlawful harassment, including, but not limited to, harassment based on pregnancy, childbirth, and related medical conditions.

What Employers Should Do Now

Covered employers should:

  • Familiarize themselves with their obligations under the PWFA and the Final Rule.
  • Update accommodation policies and procedures in keeping with the Final Rule.
  • Train human resources staff, managers, and supervisors on the new procedures for handling and evaluating requests for reasonable accommodation.
  • Review the EEOC enforcement guidance on harassment and update their policies, procedures, and staff/management training accordingly. 

Employers with questions about their obligations generally or as to specific employees should contact Melissa Jones at Tydings to discuss.