When Congress passed the Pregnant Workers Fairness Act (PWFA), it required the (EEOC) to issue regulations under it. The EEOC has issued its final rule and interpretive guidance, which is effective June 18, 2024.
The Law
Covered entities must make reasonable accommodations to qualified employees or applicants who have known limitations related to pregnancy, childbirth, or related medical conditions, absent an undue hardship to the business.
Covered Employer
The PWFA applies to both private and public sector employers with 15 or more employees. It also applies to Congress, Federal agencies, employment agencies, and labor organizations.
Qualified Employee or Applicant
Qualified employees or applicants include those who have a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions and can either: a) perform the “essential functions” of the job with or without reasonable accommodation, or b) if they are temporarily unable to perform the essential functions of the job but, could perform the functions in the “near future.”
Covered Physical and Mental Conditions
PWFA provides reasonable accommodations for qualified workers with known limitations (physical or mental conditions that have been communicated to the employer) related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
The EEOC rule has a broad view of pregnancy, childbirth, or related medical conditions. It includes a non-exhaustive list of examples of such conditions, including fertility treatments, morning sickness, lactation, miscarriage, stillbirth, abortion, gestational diabetes, postpartum depression, anxiety, psychosis, edema, frequent urination, and placenta previa.
PWFA conditions encompass current, past, and potential pregnancy. Of note, physical or mental conditions can be considered PWFA limitations regardless of whether they meet the ADA’s stricter definition of disability.
Employee Obligations
The employee must identify the limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions and the accommodation at work due to the limitation. This can be as simple as saying they need time off from work to attend a medical appointment because of pregnancy or they cannot lift more than 20 pounds while pregnant.
What Must Employers Provide
Employers are required to provide accommodations under the PWFA absent undue hardship. Employers should use the interactive process as is done under the ADA. The employer and employee communicate about the employee’s limitations and whether there is a reasonable accommodation that enables the employee to continue to work. The employer must consider the employee’s preference but make the final decision on the accommodation.
Reasonable Accommodations
Examples of reasonable accommodations include additional water, food, or restroom breaks; telework or time off to recover from childbirth or miscarriage; temporary reassignments or suspension of particular job duties; a place to sit while working; and time off for healthcare appointments. Potential accommodations related to lactation include ensuring that lactation spaces are within physical reach of mothers during work hours and the inclusion of essential features such as a private place to sit in proximity to refrigerators for milk storage.
Documentation
Documentation from the employee is not required, but employers may request it when doing so is reasonable under the circumstances to confirm the physical or mental conditions arising from pregnancy, childbirth, or related medical conditions and the need for accommodation. However, employers may not request unduly burdensome documentation.
What Employers Should Do
Employers should ensure supervisors and managers are adequately trained on the PWFA and the interactive process so that they know how to respond to a request for accommodation. When training managers, employers should understand that one of the goals of the PWFA is to find a way for employees to continue to work while pregnant.
Managers should be prepared in advance to understand the rights of applicants and workers who are pregnant, trying to become pregnant, recently gave birth, or miscarried. Of note, employers cannot require a qualified employee to take a leave, whether paid or unpaid, when other accommodations can be provided.
Employers must avoid retaliating against those who request or use a reasonable accommodation. The PWFA retaliation provision mirrors the protections under the ADA and Title VII.
PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.
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