At a Glance:

Last week, the U.S. Equal Employment Opportunity Commission (EEOC) published guidance interpreting and outlining how to implement the Pregnant Workers Fairness Act (“PWFA” or the “act”). The act, which has been in effect since June 2023, requires most employers with 15 or more employees to reasonably accommodate a qualified employee or applicant’s known limitations associated with pregnancy, childbirth, or a related medical condition, unless doing so causes an undue hardship on the employer.

Employers should note that the EEOC’s final rule, while changing nothing about the broad strokes of the PWFA, provides useful clarity on the types of limitations that should be accommodated, how to request an accommodation, and several examples of reasonable accommodations in this context. The final rule takes effect 60 days after publication, on June 18, 2024.

Key Provisions of the Final Rule Implementing the PWFA: 

What is a “known limitation” that needs to be reasonably accommodated?

Known limitations that must be reasonably accommodated under the PWFA include any “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” that the employee or the employee’s representative communicate to the employer. Known limitations may include:

• Limitations that do not rise to the level of a “disability” under the Americans with Disabilities Act.
• Modest, minor, and/or episodic conditions (e.g., fatigue or vomiting).
• A need or problem related to maintaining the employee’s health or the health of the pregnancy (e.g., a need to minimize exposure to secondhand smoke).
• A need to seek health care related to pregnancy, childbirth, or a related medical condition.

What qualifies as a pregnancy, childbirth, or a related medical condition?

Employers are required to accommodate only the pregnancy, childbirth, or related medical condition of the specific employee in question. That is, employers are not required to accommodate an employee’s limitation related to, for example, the pregnancy of their spouse or partner.

“Pregnancy” and “childbirth,” however, can include the employee’s current, past, or potential pregnancy (including infertility, fertility treatment, and the use of contraception), labor, and childbirth (including vaginal delivery and delivery by caesarian section).

The EEOC’s new rule provides a useful, non-exhaustive list of “related medical conditions” as examples, including pregnancy termination (by miscarriage, stillbirth, or abortion); infertility; conditions that have an impact on fertility or the reproductive system; ectopic pregnancy; preterm labor; pelvic prolapse; cesarean or perineal wound infection; gestational diabetes; preeclampsia; anemia; endometriosis; sciatica; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; antenatal or postpartum anxiety, depression, or psychosis; frequent urination; incontinence; vaginal bleeding; menstruation; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections.

How to request and respond to a request for an accommodation

Employees or job applicants who need a reasonable accommodation under the PWFA are responsible for asking for one, but they can do so orally or in writing. No specific phrase or mention of the PWFA is required. The employee or applicant (or someone communicating on their behalf) need only communicate that they have a limitation related to pregnancy, childbirth, or a related medical condition, and that they need an adjustment or change at work because of it.

Employers must then respond to the request. If it is a no- or low-cost and straightforward accommodation (e.g., providing a stool for a pregnant cashier or allowing a pregnant worker to carry a bottle of water to drink as needed), the employer should act quickly to provide the accommodation. If the employer has questions or wants to explore different reasonable accommodations, the employer and employee can engage in an “interactive process” to determine an appropriate reasonable accommodation.

If the requested accommodation imposes a heavier burden or requires temporarily suspending one of the essential functions of the job, the employer can request reasonable supporting medical documentation that confirms or describes the limitation and the change or adjustment needed at work. Requesting medical documentation is not appropriate when the limitation and the need for an accommodation are obvious; when the employee has already presented supporting documentation; or when a worker seeks a no-to-low cost accommodation such as carrying water, taking additional restroom breaks, sitting or standing, or taking a break to eat or drink. Further, because immediately obtaining medical documentation may be difficult, the EEOC’s new rule states that employers should provide alternative reasonable accommodations while awaiting supporting medical documentation.

What are examples of reasonable accommodations under the PWFA?

Put simply, a reasonable accommodation is a change in the job that adapts it for the qualified employee. The regulation provides several examples of reasonable accommodations under the PWFA, including:

• Frequent breaks.
• Sitting/Standing.
• Schedule changes, part-time work, and paid and unpaid leave.
• Telework.
• Parking.
• Light duty.
• Making existing facilities accessible or modifying the work environment.
• Job restructuring.
• Temporarily suspending one or more essential functions.
• Acquiring or modifying equipment, uniforms, or devices.
• Adjusting or modifying examinations or policies.

In addition, the final rule provides examples of several accommodations that will always be reasonable:

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

What if the employee cannot perform the essential functions of the job?   

Employers should note that, under the PWFA, they may be required to accommodate employees who temporarily cannot perform the essential functions of the job, even with an accommodation.

Employees or applicants who cannot perform the job’s essential functions may still qualify for a reasonable accommodation under the PWFA when three conditions are met: (1) the inability to perform the essential function is “temporary,” (2) the employee could perform the essential function “in the near future,” and (3) the inability to perform the essential function can be reasonably accommodated (e.g., if another employee can perform the function, or if the function can be temporarily paused until the employee needing accommodation can return to performing it). The EEOC’s regulations provide additional guidance on when it may be a reasonable accommodation to temporarily suspend the performance of an essential job function.

What constitutes an undue hardship?

The PWFA, like the Americans with Disabilities Act (ADA), does not require employers to provide an accommodation that would cause an undue hardship on the employer. The new regulations clarify that the PFWA follows the ADA’s definition of an “undue hardship,” which generally means significant difficulty or expense for the employer’s operations.

When determining whether an undue hardship exists, employers should consider the same factors applied in the ADA context (such as the cost, financial resources, and number of employees at the employer and the effect the cost would have on the employer’s overall resources and operations).

Employers should note, however, that the PWFA—unlike the ADA— may require employers to accommodate an employee’s temporary inability to perform essential functions of the job. When considering whether it is reasonable to temporarily suspend one or more essential functions of the job, employers should consider additional factors, such as the length that the employee will be unable to perform the essential function,  the nature of the essential function, and whether another employee could perform the essential function.

What remedies or penalties may be applied?

For private employers, the remedies available under the PWFA generally align with those available under Title VII, including, but not limited to, back pay, front pay, compensatory damages, punitive damages, and (where appropriate) reinstatement and promotion. Like in the Title VII context, the cap on compensatory and punitive damages under the PWFA varies depending on the size of the employer:

• $50,000 for employers who have between 15-100 employees.
• $100,000 for employers who have between 101-200 employees.
• $200,000 for employers who have between 201-500 employees.
• $300,000 for employers who have over 500 employees.

Please reach out to Taft’s Employment group with questions regarding this guidance.