The Sophisticated Employer Blog

On June 18, the U.S. Equal Employment Opportunity Commission (EEOC) implemented its final regulations for the Pregnant Workers Fairness Act (PWFA), originally issued on April 19, 2024.

These regulations provide crucial clarifications and address gaps in the original legislation, defining key terms and outlining the law’s applicability to various employers and employees.

Understanding the PWFA and its Legal Context

The PWFA requires employers with 15 or more employees to provide reasonable accommodations for known limitations related to pregnancy, childbirth or related medical conditions, unless doing so would cause undue hardship. This law applies to both private and public sector employers, including federal agencies, Congress, employment agencies and labor unions.

The PWFA fills gaps left by other federal and state laws. For instance, while the Family and Medical Leave Act (FMLA) offers up to 12 weeks of unpaid leave post-childbirth, it only applies to larger employers and has specific eligibility criteria. Similarly, the PUMP Act provides limited protections for nursing mothers. The PWFA, however, offers broader and more explicit protections for pregnancy-related conditions.

The PWFA draws heavily from the Americans with Disabilities Act (ADA) but extends its protections. Under the ADA, a qualified individual with a disability is entitled to reasonable accommodation only if they can perform the essential functions of their job with or without accommodation.

However, the PWFA considers employees “qualified” even if they are temporarily unable to perform essential job functions, provided they can do so in the near future and the inability can be reasonably accommodated. This effectively suspends the requirement to perform essential functions temporarily, a significant departure from the ADA’s standards.

EEOC’s Expansive Interpretive Guidance

The EEOC’s final regulations provide extensive guidance on implementing the PWFA. Reasonable accommodations are broadly defined as “modifications or adjustments” to the application process or work environment that enable an employee to “enjoy equal benefits and privileges of employment.” This includes the temporary suspension of essential job functions.

The EEOC outlines several reasonable accommodations, such as making facilities accessible, job restructuring, modified work schedules, uniform modifications, unpaid leave for recovery from childbirth, attending prenatal appointments, therapy for postpartum depression, telework, and accommodations for lactation. Employers should engage in an informal, interactive process to determine if an accommodation is reasonable.

The EEOC also identifies four “predictable assessments” considered presumptively reasonable:

1. Permitting additional restroom breaks as needed
2. Allowing breaks to eat and drink as needed
3. Permitting employees to carry or keep water and drink as needed
4. Allowing employees whose work requires standing to sit and vice versa as needed

Accommodation requests do not need to be in writing. Employees or their representatives only need to communicate the need for an adjustment due to a physical or mental condition related to pregnancy, childbirth or related medical conditions. Employers are not required to seek supporting documentation unless it is reasonable to determine whether the employee has a condition requiring a work adjustment.

Documentation and Reasonableness

There are specific situations where requesting documentation is not reasonable, such as when the limitation and needed adjustment are obvious, when the employer already has sufficient information, or when the employee provides self-confirmation of pregnancy. Additionally, accommodations related to pumping or nursing at work do not require supporting documentation if the employee provides self-confirmation.

Practical Guidance for Employers

1. Update policies and procedures. 

• Review and Revise Policies: Ensure that company policies are updated to reflect the requirements of the PWFA and the EEOC’s guidance.
• Communicate Changes: Inform employees about the updated policies and their rights under the PWFA.

2. Train HR and Management

• Conduct Training Sessions: Regularly train HR professionals and managers on the PWFA requirements and the process for handling accommodation requests.
• Emphasize Confidentiality: Highlight the importance of maintaining confidentiality throughout the accommodation process.

3. Engage in the Interactive Process

• Collaborative Approach: Encourage a collaborative dialogue with employees to identify suitable accommodations.
• Document Interactions: Keep detailed records of all accommodation requests and the steps taken to address them.

4. Implement Reasonable Accommodations Promptly

• Assess Reasonableness: Evaluate the feasibility of requested accommodations and implement them without undue delay.
• Monitor and Adjust: Regularly review the effectiveness of accommodations and make necessary adjustments.

5. Utilize External Resources

• Seek Expert Guidance: Consult resources such as the Job Accommodation Network (JAN) and legal experts for additional support and best practices.

By understanding the PWFA and the EEOC’s interpretive guidance, employers can ensure compliance and create a supportive work environment for pregnant employees. Your employment attorney can provide you with the tools and knowledge to navigate these changes effectively.