Pregnant Workers Fairness Act (PWFA) Final Rule Highlights

On April 19, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published a final rule^[1] to implement the Pregnant Workers Fairness Act (PWFA). As a reminder, the PWFA first went into effect on June 27, 2023^[2]. This final rule, which includes associated interpretive guidance, is quite extensive and intended to clarify details under the law and provide welcome additional guidance to employers. For purposes of this article, we will provide a high-level background of the PWFA as well as highlights of the final rule. The final rule became effective on June 18, 2024.

Pregnant Workers Fairness Act (PWFA) Timeline

PWFA Background

The PWFA, signed into law on December 29, 2022, is a workplace antidiscrimination law with a significant goal of providing “pregnant employees with the ability to keep working while they are pregnant in order to protect their economic security as well as their health and the health of their pregnancy.” The PWFA expands upon existing protections against pregnancy discrimination under Title VII of the Civil Rights Act of 1964 and access to reasonable accommodations under the Americans with Disabilities Act (ADA).

The PWFA requires a covered employer (see definition below) to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship. ”Undue hardship’’ refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.^[3]

Covered employers: Public and private employers with 15 or more employees are covered under the PWFA. Additionally, labor unions and employment agencies are covered employers under the PWFA.

Qualified employee or applicant: Under the PWFA, an individual may meet the definition of “qualified” in one of two ways:

1. An employee or applicant who can perform the “essential functions” of the job with or without a reasonable accommodation is qualified. “Essential functions” are the fundamental duties of the job. Many employees or applicants seeking accommodations will likely meet this part of the definition because they can perform the job or apply for the position with a reasonable accommodation.
2. If an employee cannot perform the essential functions of the job with or without a reasonable accommodation, an employee can be qualified even if they cannot do the essential functions of their job as long as:
   • The inability is “temporary;”
   • The employee could perform the functions “in the near future;” (which is defined as generally 40 weeks for pregnancy) and
   • The inability to perform the essential functions can be reasonably accommodated.

This means that an employee who is temporarily unable to perform one or more essential functions of their job, and who needs light duty or a change in their work assignments as examples, may be able to get such a change as a reasonable accommodation.

Limitations: Under the PWFA, “limitations” are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

Pregnancy, childbirth, or related medical conditions: The final rule provides an expansive definitional list of “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” This includes conditions in connection with a current pregnancy, a past pregnancy, and a potential pregnancy, detailed in the following conditions outlined in the non-exhaustive list below.

* Notably, while the final rule discusses providing time off as a potential reasonable accommodation with respect to abortion-related medical appointments or for recovery of abortion, the PWFA does not require, or prohibit, an employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment, including abortions. However, employees may have rights to abortion-related health plan coverage under other federal, state, or local laws.

PWFA Final Rule Highlights

As a reminder, the PWFA first went into effect on June 27, 2023. This final rule clarifies specifics under the law and provides welcome additional guidance to employers to comply with the PWFA. Highlights of the final rule include the information detailed below.

Reasonable Accommodation Examples

This final rule contains extensive examples of reasonable accommodations that may be requested and granted under the PFWA.

Below is a non-exhaustive list of potential reasonable accommodations under the PWFA:

• Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
• Changing food or drink policies to allow for a water bottle or food;
• Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;
• Changing a uniform or dress code or providing safety equipment that fits;
• Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
• Telework;
• Temporary reassignment;
• Temporary suspension of one or more essential functions of a job;
• Leave for health care appointments;
• Light duty or help with lifting or other manual labor; or
• Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

The final rule also reminds employers that different accommodations may be needed at various times during the pregnancy or even after childbirth.

Presumptive Reasonable Accommodations

The final rule confirms that the accommodations for pregnant employees listed below are presumed to be reasonable and do not impose an undue hardship under the PWFA:

1. Allowing an employee to carry or keep water near and drink, as needed
2. Allowing an employee to take additional restroom breaks, as needed
3. Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed
4. Allowing an employee to take breaks to eat and drink, as needed

The EEOC in the final rule confirms that “these accommodations [listed above] are low cost and unlikely to affect the overall financial resources of the covered entity, the operations of the facility, or the ability of the facility to conduct business.”

Accommodation Requests

The final rule provides a clear process for employees to request a reasonable accommodation using the “interactive process” outlined in the ADA. The interactive process generally involves communication between the employer and the employee to identify the known limitation and the potential reasonable accommodation, which is the adjustment or change needed to allow the employee to continue working. Employees are not required to accept an accommodation other than a reasonable accommodation arrived through the interactive process.

The final rule states that “there are no rigid steps that must be followed when engaging in the interactive process under the PWFA, and information provided by the employee does not need to be in any specific format, include specific words, or be on a specific form.” Moreover, the final rule encourages early and frequent communication between employers and employees to initiate and address requests for reasonable accommodation in a timely manner.

Under the PWFA, employers are prohibited from denying a job or other employment opportunities to a qualified employee (or applicant) and taking adverse action in the terms, conditions, or privilege of employment against an employee for requesting a reasonable accommodation.

Reasonable Documentation Requests

The final rule states that covered employers are allowed to request supporting documentation from an employee only when it is reasonable under the circumstances. This generally means that reasonable documentation confirms the physical or mental condition, the relation to pregnancy, childbirth or related medical conditions, and the need for an adjustment or change at work.

The following situations are examples of when it is not reasonable under the circumstances to seek supporting documentation:

• The limitation and need for an adjustment or change at work due to the limitation is obvious.

  Example: An obviously pregnant employee who seeks a bigger uniform because of their pregnancy cannot be required to provide additional information.

• The employer already knows about the limitation and the adjustment or change at work due to the limitation.

  Example: An employee already provided documentation stating that because of their recent cesarean section they should not lift over 20 pounds for 2 months, the employer may not seek further supporting documentation during those 2 months because the employer already has sufficient information.

• The employee is currently pregnant and needs breaks for the bathroom or to eat or drink, needs to carry water with them to drink, or needs to stand if their job requires sitting or to sit if their job requires standing.
• The employee is lactating and needs modifications to pump at work or nurse during work hours.
• The employer would not ask an employee for documentation in a non-PWFA situation normally.

  Example: If an employer has a policy requiring a note from a health care provider for employee absences of three or more days in a row, the employer cannot require an employee who needs a reasonable accommodation of one day off because of pregnancy, childbirth, or a related medical condition to provide information from the health care provider.

Providing Reasonable Accommodations Promptly

Employers covered under the PWFA should respond promptly to accommodation requests, according to the final rule. Unnecessary delays in providing a reasonable accommodation to employees may result in a violation of the PWFA, even if the employer eventually provides reasonable accommodation to the employee.

However, the final rule clarifies that providing an interim reasonable accommodation, although not required, is considered a best practice and may help mitigate an employer’s liability under the PWFA.

Leave Accommodation under the PWFA

Leave may be granted as a reasonable accommodation under the PWFA, even if an employer has exhausted their leave rights under the Family Medical Leave Act (FMLA) or applicable state/local laws. The PWFA does not require that leave as an accommodation be paid leave, so leave will be unpaid unless an employer’s policies provide otherwise.

Additionally, an employee granted leave as a reasonable accommodation is entitled to return to their same position unless the employer can prove an undue hardship from holding the position open.

Note that employers cannot require an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continuing working.

PWFA and the Americans with Disabilities (ADA)

An employee’s physical or mental condition, which is the limitation under the PWFA, required to trigger the obligation to provide a reasonable accommodation under the PWFA does not need to meet the definition of a ‘‘disability’’ under the ADA. This means that an employee is not required to have an impairment that substantially limits a major life activity to be entitled to a reasonable accommodation under the PWFA, which is a more expansive approach than required under the ADA.

The PWFA can cover physical or mental conditions that also are covered under the ADA. In these situations, an individual may be entitled to an accommodation under the ADA as well as the PWFA.

Under the ADA, employers must keep medical information confidential. That applies to documentation gathered under the PWFA as well, including the fact that an employee is pregnant, has recently been pregnant, or has a medical condition related to pregnancy or childbirth, as well as that an employee is receiving or has requested a reasonable accommodation under the PWFA.

Other Final Rule Points of Interest

The PWFA does not create a right to reasonable accommodation based on an individual’s association with someone else who may have a PWFA-covered limitation. An employee is not entitled to an accommodation because they have a physical or mental condition related to, affected by, or arising out of someone else’s pregnancy, childbirth, or related medical conditions. Time for bonding or time for childcare also is not covered by the PWFA.

Furthermore, the final rule confirms that the PWFA does not replace federal, state, or local laws that may be more protective of qualified employees and applicants impacted by pregnancy, childbirth, or related medical conditions.

Finally, the final rule includes information regarding how employers may assert defenses or exemptions, including those based on religion.

Employer Impact

On a practical level, most employers do not need to become experts in this final rule with its 78 illustrative examples of reasonable accommodations unless they are contemplating denying a reasonable accommodation request under the PWFA. In that case, be sure to consult with your employment and labor counsel before denying any reasonable accommodation requests under the PWFA.

Nonetheless, employers are still encouraged to take the following steps to comply with the PWFA, in close collaboration with their employment and labor counsel:

1. Train managers/supervisors and Human Resource team members on the PWFA and this final rule’s implementing guidance.
2. Update employee handbooks and leave/accommodation policies/practices, as appropriate, including determining if any applicable state/local laws must be complied with, in addition to the PWFA.
3. Ensure that all supporting documentation received in accordance with the PWFA is handled confidentially.

The EEOC published a PWFA FAQs webpage for further guidance.

On a final note, the PWFA is part of a growing trend of laws intended to recognize the importance of workplace accommodations and protections for pregnant employees. In fact, states are beginning to jump on this bandwagon, including New York becoming the first state in the nation to mandate paid prenatal leave starting in 2025. Click here for a Risk Strategies article detailing the new paid prenatal leave requirements for employees working in New York State.

Risk Strategies is here to help. Contact us directly at benefits@risk-strategies.com.

[1] The EEOC released PWFA proposed rules on August 11, 2023.

[2] Of note, the EEOC began accepting charges alleging violations of the PWFA on June 27, 2023.

[3] 42 U.S.C. 12111(10).