PWFA Final Regulations Released

The U.S. Equal Employment Opportunity Commission (EEOC) released the final regulations for implementing the Pregnant Workers Fairness Act (PWFA), providing important clarity to help employers understand their responsibilities under the law. 

The final regulations were published in the Federal Register in April and go into effect on June 18, 2024. Detailed information can be found on the EEOC website, including What You Should Know about the Pregnant Workers Fairness Act and Pregnancy Discrimination and Pregnancy-Related Disability Discrimination.

PWFA Requirements

The PWFA requires private and public sector employers with 15 or more employees to provide reasonable accommodations for an employee’s known mental or physical limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation would result in an undue hardship for the employer.

The PWFA accommodation provisions are based on the Americans with Disabilities Act (ADA), but under the PWFA, the condition and lack of ability to perform an essential job function are temporary. The overall purpose of the PWFA is to provide accommodations that allow employees to keep working safely and effectively, without discrimination or retaliation, and not be forced to take leave unless it’s the only viable option.

Other federal laws applying to employees or applicant rights affected by pregnancy, childbirth, or related medical conditions include Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).

Highlights of the Final Regulations

Limitations and medical conditions for which employees or applicants may seek reasonable accommodation may include:

• Uncomplicated pregnancy
• Vaginal birth or cesarean section
• Miscarriage or stillbirth
• Lactation
• Edema
• Placenta previa
• Pregnancy-related conditions that are episodic, such as morning sickness or migraines
• Postpartum depression

Documentation to validate an accommodation request may be required. An employer can only ask for supporting medical documentation when it is reasonable under the circumstances. For example, medical certification isn’t necessary when an obviously pregnant employee asks for a closer parking space. Medical certification can be requested for an employee asking for an accommodation for a condition that’s not obvious, such as postpartum depression.

If the employer is allowed to ask for documentation from a health care provider, the employer is limited to documentation that:

• Confirms the physical or mental condition
• Confirms the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical condition
• Describes the accommodations needed

Employers and employees are encouraged to engage in early and frequent communication to raise and resolve requests for reasonable accommodation. Once an accommodation request is received, the employer is required to enter an interactive process with the employee. Reasonable accommodations should be granted and implemented unless they impose an undue hardship on an employer. An undue hardship means significant difficulty or expense for the employer.

There are specific examples of accommodations that may be considered reasonable and would not pose an undue hardship in most cases:

• Amending food or drink policies to allow for a water bottle or food
• Additional, longer, or more flexible breaks to drink water, rest, eat, or use the restroom
• Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing

Some examples of reasonable accommodations also include:

• Changing a uniform or dress code or providing safety equipment that fits
• Light duty or help with lifting or other manual labor
• Changing a work schedule, such as having shorter hours, part-time work, or a later start time
• Time off for health care appointments
• Temporary reassignment
• Temporary suspension of one or more essential functions of the job
• Telework
• Leave to recover from childbirth, a miscarriage, or other medical conditions related to pregnancy or childbirth

This list provides examples of reasonable accommodations — others may exist. Remember that an employee may need different accommodations at different times during the pregnancy or after childbirth.

Texas Legal Challenge

On February 27th, 2024, a federal district court in Texas ruled that Congress lacked the required quorum to implement the PWFA. The scope of the court’s order is narrow, stating the EEOC is barred from enforcing the PWFA only against the State of Texas. The order doesn’t extend to private employers or other governmental employers, including schools. The decision is being appealed by the federal government.

Next Steps

Employers, typically through the HR department, should be prepared to promptly enter into an interactive process when an employee tells the employer they have a limitation. The EEOC expects that many PWFA accommodations can be granted after simple exchanges of information between the requestor and the employer, such as brief conversations or emails. HR should train supervisors on recognizing accommodation requests, responding to them, implementing reasonable accommodations, and how to not retaliate.

Additionally, HR should remind supervisors that any medical information, including documentation gathered under the PWFA, is confidential under the ADA.