EEOC Issues Guidance on New Pregnant Workers Fairness Act

On August 11, 2023, the EEOC issued a Notice of Proposed Rulemaking to implement the Pregnant Workers Fairness Act (PWFA).  The new law officially went into effect on June 27, 2023, for organizations with 15 or more workers.  In general, employers will be expected to make reasonable accommodations for the "known limitations" of applicants and employees who are experiencing pregnancy and related conditions.  There are a number of nuances to the guidance, however, which employers need to be familiar with. 

First, the PWFA regulations require employers to grant reasonable accommodations to pregnant workers no matter how they treat similar workers, so long as doing so would not impose an undue hardship.  However, pregnancy conditions need not rise to the level of a disability, and the definition of pregnancy, childbirth, or related medical conditions is quite broad, that require accommodation by employers.  Conditions related to pregnancy include not only childbirth, breast feeding, miscarriages and abortions, but also limitations that are due to menstruation, infertility and fertility treatments, and endometriosis.  

Employers may not unnecessarily delay the process for considering and providing accommodations under the PWFA and may not require employees with such conditions to take leave - even if that employee's ability to do their job is limited - if they can reasonably accommodate the employee in another way.  An individual may be considered a "qualified" applicant or employee even if they cannot perform the essential functions of their job, if their inability to perform essential functions is temporary, and could be resolved in the near future (generally meaning within 40 weeks), and the person could be reasonably accommodated during the period of time they cannot perform the essential functions.  While the PWFA incorporates the Americans' with Disabilities Act's (ADA) definition of reasonable accommodation, which requires an individualized assessment, the EEOC also lists four specific accommodations it deems will be considered to be automatically reasonable.  Typical documentation is not necessary for accommodations that can include carrying water and drinking as needed; taking additional restroom breaks; allowing an employee to sit or stand when necessary; and breaks as needed to eat and drink.  These accommodations are expected to be provided in virtually all circumstances.  Additional stated examples of possible accommodations include: (1) light-duty assignments; (2) providing an employee with different equipment; (3) closer parking; (4) schedule changes/flexible hours; (5) temporarily suspending one or more essential functions; and (6) teleworking.  A leave of absence is also a reasonable accommodation, but should only be offered as an accommodation if there is no other reasonable accommodation available.

There is a difference from current ADA procedures that employers would not be allowed to require that initial accommodation requests be made in writing or by filling out a form, although they would be able to make that later.

All a qualified employee must do is to identify the limitation with their employer, explain that the limitation relates to pregnancy, childbirth, or related medical condition, and indicate they need a change at work.  The process requires the employer to engage in the interactive process with the employee to determine reasonable accommodation.  Employers should also update their policies to include any aspects of the PFWA they may have omitted.

This article is part of our January 2024 Newsletter. 

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