On June 18, 2024, the Equal Employment Opportunity Commission’s (“EEOC”) final regulations implementing the Pregnant Workers Fairness Act (“PWFA”) came into effect. The final regulations help to fill in the gaps left by the PWFA concerning definitions and applicability of the PWFA to certain workers and employers.

Background

The PWFA became effective on June 27, 2023 and requires employers with 15 or more employees to provide reasonable accommodations to qualified workers or applicants with known limitations arising out of pregnancy, childbirth, or related medical conditions. Qualified individuals include those employees and applicants that are able to perform the essential functions of the position they hold or are applying to, with or without reasonable accommodation.

A worker or applicant may also be “qualified” even if they are unable to presently perform all essential job functions with reasonable accommodation, if: (a) such an inability is temporary; (b) the worker or applicant can perform all essential job functions in the near future; and (c) such inability can be reasonably accommodated by the employer without undue hardship. This part of the PWFA deviates from the Americans with Disabilities Act (“ADA”) in that the ADA does not require employers to temporarily suspend essential job functions.

In addition to requiring employers to provide a reasonable accommodation for qualified workers or applicants, the PWFA further prohibits covered employers from:

  • Requiring a qualified employee or applicant to accept an accommodation without first engaging in an interactive process with the qualified employee or applicant;
  • Denying employment opportunities to a qualified employee or applicant based on their need for a reasonable accommodation;
  • Requiring an employee to take leave in lieu of providing an accommodation that would allow the qualified employee to keep working;
  • Retaliating against a qualified employee or applicant on the basis of their need, request for, or use of a reasonable accommodation under the PWFA;
  • Retaliating against a qualified employee or applicant for reporting discrimination under the PWFA, including participation in an investigation related to the same. and/or
  • Coercing individuals who are exercising their rights or helping others exercise their rights under the PWFA.

Clarification and Final Regulations

The final regulations provide clarity on a variety of topics covered under the act. A few key points are addressed below.

As stated above, the PWFA protects workers that are unable to perform all essential job duties, so long as such inability is “temporary” and that they are able to perform the job duties “in the near future.” However, the PWFA fails to define what “temporary” or “in the near future” means. The final regulations expand on these definitions:

Temporary: The final regulations expand on this concept, defining “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.'”

In the Near Future: As a starting point, the time period of any leave or accommodation required by an employee must be ascertainable. Generally, for a current pregnancy, 40 weeks from the start of an accommodation or leave is deemed to be “in the near future.” For conditions other than a current pregnancy (such as when that worker returns from leave after childbirth), a separate determination as to “in the near future” must be made. In such cases, the final regulations offer no definition of “in the near future,” but explains that indefinite leave or suspension of an essential job function does not meet the definition of “in the near future.”

The final regulations also provide guidance on what is meant by “pregnancy, childbirth, or related medical conditions.”

Pregnancy and Childbirth: Includes current pregnancy, past pregnancy, potential or intended pregnancy (including infertility, fertility treatments, and the use of contraception), labor, and childbirth (both natural and cesarean section).

Related Medical Conditions: In addition to being related to pregnancy and childbirth (as defined above) such conditions need not be caused solely, originally, or substantially by pregnancy or childbirth. While such conditions may include overt conditions such as lactation, breastfeeding, miscarriage, stillbirth, abortion, preeclampsia, gestational diabetes, HELLP, and others, they may also include preexisting conditions exacerbated by a pregnancy or childbirth.

Further, the final regulations provide a list of possible accommodations, including:

  • Allowing for telework/remote work or change of worksite;
  • Frequent breaks (including sufficient space for pumping/nursing as applicable);
  • Providing seating for jobs that otherwise require standing;
  • Schedule changes;
  • Assignment to light duty;
  • Making existing facilities accessible or modifying the work environment;
  • Job restructuring;
  • Temporary suspension of one or more essential job function;
  • Modifying equipment, uniform, or devices;
  • Adjusting examination policies;
  • Providing a parking spot.

In addition to the definitions addressed above, the final regulations provide further guidance and information, such as when an employee or applicant has a “known limitation.” The EEOC has also published a Q & A on the PWFA and regulations which can be found on its website (here).

Next Steps for Employers

As accommodation requests for pregnancy-related matters are frequently time-sensitive, it is essential for employers to understand and recognize their obligations under the PWFA. When interacting with individuals who may be eligible for protections under the PWFA, employers are advised to consider other laws and regulations that may also be applicable. Other applicable laws include, but are not limited to, the ADA, the Fair Labor Standards Act (“FLSA”), the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”), and state and local leave and accommodation laws.

In addition to reviewing the regulations and guidance published by the EEOC, employers should review and revise any internal policies regarding pregnancy-related accommodations and develop protocols to follow when such requests are made. Human resources and managers should also receive training on the law and other applicable federal, state or local law to ensure compliance1.