What to Expect Under the EEOC’s Final Regulation on the Pregnant Workers’ Fairness Act

On April 15, 2024, the U.S. Equal Employment Opportunity Commission issued final regulations that clarify the obligation of employers to provide reasonable accommodation to pregnant workers under the Pregnant Workers’ Fairness Act (PWFA) that went into effect in June 2023.  While employers should review the final regulations linked here for further details, some highlights from new regulations are discussed below.

The Employer’s Obligations Under the PWFA:

The PWFA requires employers of 15 or more to provide reasonable accommodations “to the known limitations of a qualified employee related to pregnancy, childbirth, or related medical conditions, absent undue hardship.”  The regulations specify that employers are prohibited from:

• requiring employees to accept any accommodation that is not arrived at through the “interactive process” (described further below):
• denying employment opportunities because the employer knows that reasonable accommodations will have to be made;
• requiring employees to take a leave of absence if another form of reasonable accommodation is available; and
• retaliating against employees who exercise rights under the PWFA.

Guidance About the Circumstances For Which Reasonable Accommodation Can Be Requested:

“Pregnancy” and “childbirth” include, but are not limited to, current pregnancy, past pregnancy, potential or intended pregnancy (including infertility, fertility treatments, the use of contraception); labor; and childbirth.  The regulations include a non-exhaustive list of “related medical conditions” that must be accommodated, including:

• termination of pregnancy, including miscarriage, stillbirth, abortion, ectopic pregnancy;
• preterm labor, pelvic prolapse, nerve injuries;
• cesarean or perineal wound infection;
• maternal cardiometabolic disease, gestational diabetes, preeclampsia and other pregnancy-related diseases;
• sciatica, carpal tunnel syndrome, migraines, dehydration, hemorrhoids, nausea/vomiting, edema, high blood pressure;
• antenatal or postnatal depression, anxiety, or psychosis;
• frequent urination, incontinence;
• loss of balance and vision changes;
• vaginal bleeding and mensuration; and
• lactation and related medical conditions.

However, to be a “related medical condition” for the purposes of the PWFA, the condition must relate to pregnancy or childbirth.  The regulations point out, however, that if the condition is not covered by the PWFA it nevertheless may constitute a disability under the ADA.

Scope of “Limitations”:

Limitations of pregnancy include physical or mental conditions that may be modest, minor and/or episodic, including those that may not meet the definition of “disability” under the Americans With Disabilities Act (ADA).  Limitations also include time spent by the employee when seeking medical care for the condition.

Expanded Definition of “Qualified Employee”: 

Like the ADA, a qualified employee is one who, with or without reasonable accommodation, can perform the essential functions of the position.  However, when the accommodation is a leave of absence, the relevant inquiry is whether the employee will be able to perform essential functions after the leave is completed.

In addition, an employee will be considered qualified even if they cannot perform one or more essential functions when:

• the inability to do so is “temporary” and may extend beyond “in the near future”;
• the essential functions can be performed in the near future, which in the case of pregnancy, is presumed to be within 40 weeks of the suspension of the function; and
• the inability to perform the essential functions can reasonably be accommodated through a temporary suspension of the function and the employee performing their remaining functions, or through other arrangements, such as a temporary transfer, or a light or modified duty assignment.

Requesting Accommodation and the Interactive Process:

The employee need only communicate to a member of management that they require an adjustment or change of work due to their pregnancy/childbirth related limitation.  The communication can be oral or written and need not identify a medical condition or use medical terms.  Any request triggers an informal interactive process between the employer and the employee to identify the employee’s limitations and explore potential accommodations.

Employers should only ask for supporting documentation when it is reasonable under the circumstances to verify that the employee has a pregnancy or childbirth related condition and needs accommodation.  The regulation provides the following examples of when it is not reasonable to ask for documentation:

• the physical or mental limitation is obvious;
• the employer already has sufficient documentation to determine that the condition is related to pregnancy/childbirth;
• the employee is pregnant and seeks the following modifications: being permitted to carry and drink water; additional restroom breaks; sitting or standing for periods of time; and additional meal/drink breaks;
• the employee is seeking accommodations for lactation; and
• when documentation is not asked of other employees who seek similar workplace accommodations.

Reasonable Accommodation Examples: 

The regulation include the following examples of reasonable accommodations for individuals with known limitations under the PWFA:

• modifications of existing facilities to make them accessible;
• job restructuring, modified work schedules, reassignment to a vacant position;
• increased breaks;
• modifications of equipment, uniforms or devices;
• increased seating or standing, as necessary;
• placement on light or modified duty position;
• telework, remote work or change of work site;
• temporary suspension of one or more essential functions;
• reserved parking if the employee is entitled to use employer-provided parking; or
• leave of absence, including the ability to use paid or unpaid leave.

The “Undue Hardship” Exception:

Employers need not provide accommodation if it would result in “significant difficulty or expense” when considered in light of the following factors:

1. the nature and net cost of the accommodation
2. the overall financial resources of the facility, the number of persons employed at the facility, and the effect of the accommodation on expenses and resources;
3. the overall financial resources of the entity, the size of its business, and the number, type and location of its facilities;
4. the type of operations, and the geographic separateness and administrative or fiscal relationship of the facility in question and the entity;
5. the impact of the accommodation on the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Applicants For Employment Are Also Covered: 

In defining “employee,” the regulations expressly include applicants for employment within the definition, making it clear that reasonable accommodations following the interactive process must be provided to job seekers.

Going Forward:

Without question, the PWFA and the new regulations extend extremely broad accommodation rights to employees for the physical or mental limitations they experience in connection with pregnancy or childbirth.  These rights extend beyond a traditional pregnancy to other circumstances, from miscarriage to fertility treatments.  Moreover, while employers are excused from the accommodation requirements if they can show “undue hardship,” meeting the high standard imposed by the regulations will be very challenging for most employers.  Employers should seek guidance from experienced employment law counsel when navigating these new legal requirements.