On December 27, 2022, Congress passed the Pregnant Workers Fairness Act (PWFA), which requires employers with 15 or more employees to provide reasonable accommodations for employees with pregnancy-related needs. The law, passed with broad bipartisan support, went into effect on June 27, 2023. On April 19, 2024, the EEOC issued a final regulation with extensive interpretive guidance relating to the implementation of the PWFA. The final regulation became effective on June 18, 2024. Employers subject to the PWFA should familiarize themselves with the PWFA, its relationship with other relevant laws, and the EEOC’s expansive interpretive guidance.

Understanding the PWFA and its Relationship to the ADA and Other Relevant Laws

The PWFA is applicable to private and public sector employers, as well as Congress, federal agencies, employment agencies, and labor unions. The law requires covered employers to provide qualified employees, a term broadly interpreted to include applicants, with a reasonable accommodation for known limitations relating to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.

The PWFA is intended to serve as a gap filler. The law provides explicit protections for employees relating to pregnancy, childbirth, or related medical conditions where other federal and state statutory protections may not provide such coverage. For instance, while the Family and Medical Leave Act provides up to 12 weeks of unpaid leave following the birth of a child, it is only applicable to employers with 50 or more employees and covered employees must have worked with the employer for at least a year, among other requirements. Likewise, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) affords narrow protections, requiring Fair Labor Standards Act-covered employers to provide reasonable breaktime for employees to express breast milk in shielded areas free from intrusion (and not a bathroom).

Furthermore, in passing the PWFA, Congress articulated that other federal laws, including Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, and the Americans with Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act of 2008, still remained "insufficient to ensure that pregnant workers receive the accommodations they need." Under the ADA, an employer may be required to accommodate an employee affected by pregnancy, childbirth, or related medical conditions if the employee has an "actual" or "record of" an ADA disability – but this standard includes a pregnancy-related disability, not the pregnancy itself.

Despite their differences, those who are familiar with an employer’s obligations under the ADA will recognize that the PWFA borrows language and concepts from the ADA’s legal framework. The PWFA not only adopts these concepts but expands the protections afforded to employees. Under the ADA, a qualified individual with a disability is entitled to a reasonable accommodation only if they can perform the essential functions of the job (i.e., the fundamental duties of the job) with or without a reasonable accommodation. Under the PWFA, employees who are temporarily unable to perform an essential function of the job will still be considered "qualified" if the employee will be able to perform the essential function in the near future, and the inability to perform the essential function can be reasonably accommodated. In effect, the PWFA temporarily suspends the essential function performance requirement in applicable circumstances. For example, an employer should assume that a pregnant employee will be able to perform an essential function within 40 weeks of the temporary suspension. Notably, unlike the ADA, the PWFA does not require that an employee have an impairment that substantially limits a major life activity to be entitled to a reasonable accommodation, nor must the impairment meet the ADA regulatory standard.

What Employers Need to Know: the EEOC’s Expansive Interpretive Guidance

Reasonable accommodations for known limitations under the PWFA are broadly defined as "modifications or adjustments" to the application process or the work environment and include modifications or adjustments which enable an employee to "enjoy equal benefits and privileges of employment." Reasonable accommodations also include the aforementioned "temporary suspension of essential functions," i.e., fundamental job duties, requisite for the position. The EEOC’s interpretive guidance provides that reasonable accommodations may include making facilities readily accessible; job restructuring; modified work schedules; uniform modification; permitting unpaid leave for recovery from childbirth, attending prenatal appointments and therapy for postpartum depression; telework; and accommodations for lactation, including breaks, space for lactation, and reasonable proximity to sinks, running water, and cold storage. Determination of whether an accommodation is reasonable may require employers to engage in an informal, interactive process.

Critically, the EEOC outlined four scenarios termed "predictable assessments" – described as modifications that would not impose an undue hardship and thus, are considered presumptively reasonable accommodations:

• Permitting additional restroom breaks, as needed.
• Permitting breaks to eat and drink, as needed.
• Allowing an employee to carry or keep water near and drink, as needed.
• Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed.

An accommodation request does not need to be in writing, and the employee (or their representative) need only communicate the need for an adjustment or change because of their physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Likewise, the request does not need to use medical terms, or even identify a medical condition at all. Employers are not required to seek supporting documentation and, in fact, documentation is required only when reasonable to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions requiring a work adjustment.

There are specifically enumerated circumstances in which an employer request for documentation is not reasonable, which include:

• When the limitation and the adjustment or change at work needed are obvious, and the employee provides self-confirmation.
• When the employer already has sufficient information to determine whether the employee has an applicable limitation and needs an adjustment or change at work due to the limitation.
• When the employee provides self-confirmation of a pregnancy and seeks a modification.
• When the reasonable accommodation is related to the ability to pump at work or nurse during working hours, and the employee provides self-confirmation.
• When the requested accommodation is available to employees without known limitations under the PWFA pursuant to a covered entity’s policies or practices without submitting supporting documentation.

Employers should know that the EEOC’s regulation does not replace any federal, state, or local laws that provide broader worker protections.

What Employers Can Do Right Now

Employers should ensure that their policies are up-to-date and consistent with the PWFA and accompanying regulations. Training human resources professionals and management teams tasked with fielding accommodation requests will be critical in ensuring compliance with the PWFA and corresponding regulations. Prompt communication with employees and responses in a timely manner are critical to ensuring employee well-being, fairness, and workplace equity.

To learn more about legal challenges to the PWFA regulations, please visit the links below.

Red State Challenge To EEOC Pregnant Worker Rule Falls Flat

EEOC Went Too Far With Pregnant Worker Rule, Judge Says

Resources:

EEOC: Implementation of the Pregnant Workers Fairness Act

EEOC Issues Final Regulation on Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act Text