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EEOC Publishes Expansive “Pregnant Workers Fairness Act” Final Regulation

by Jennifer Shaw and Melissa Whitehead | | April 23, 2024

The EEOC has finally published its long-awaited final regulation implementing the federal Pregnant Workers Fairness Act (“PWFA”), which is effective on June 18, 2024.

As you may recall, the PWFA “requires covered entities to make 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 on the operation of the business of the covered entity.” As usual, the devil is in the details – and the regulation provides 408 pages of details! We summarize key provisions below:

What Employers Are Covered? 

The PWFA covers all employers (including unions and employment agencies) with 15 or more employees anywhere in the universe.

Who is a “Qualified Employee”?

The PWFA provides two definitions of a “qualified employee.” The first is identical to the Americans with Disabilities Act (“ADA”) definition: “An employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.”

The second definition is unique to the PWFA, and allows an employee or applicant to be qualified even if they cannot perform one or more essential functions of the job, provided that inability is “temporary,” the employee could perform the essential function(s) “in the near future,” and the inability can be reasonably accommodated.

“Temporary” means lasting for a limited time, not permanent, and may extend beyond “the near future.” For conditions related to a current pregnancy, “the near future” means “generally” 40 weeks. As discussed below, the PWFA also covers conditions not related to a current pregnancy. Employers will need to assess on a case-by-vase basis whether a non-pregnant employee will be able to perform the essential function(s) again in the “near future.”

What Conditions Are Covered?

The PWFA requires employers to accommodate an applicant’s or employee’s “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” The condition need not meet ADA’s definition of a “disability,” and may be “modest, minor, and/or episodic.”

The definition of “related medical conditions” is substantially more expansive than other related laws, including California’s Pregnancy Disability Leave law. In addition to current pregnancies, the PWFA covers past and potential pregnancies, lactation, contraception use, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and abortion, among other conditions. It also includes pre-existing conditions exacerbated by pregnancy.

Which Accommodations Are Reasonable?

The PWFA’s definition of “reasonable accommodation” is similar to the ADA’s, and the final regulation provides several examples of possible reasonable accommodations, including telework, job restructuring, reserved parking, etc.

The regulation also lists four “predictable assessments,” which will not impose an undue hardship in “virtually all cases,” although employers may still individually assess these requests as appropriate:

  • Carry or keep water near and drink, as needed;
  • Take additional restroom breaks, as needed;
  • Sit or stand, as needed, if the employee’s work requires standing or sitting; and
  • Take breaks to eat and drink, as needed.

What Constitutes Undue Hardship?

Like the ADA, the PWFA defines “undue hardship” as a significant difficulty or expense for the employer. The regulation outlines some factors employers should consider when determining whether undue hardship exists, which are the same as the factors under the ADA. However, the final regulation also includes several additional factors when evaluating undue hardship related to the temporary suspension of an essential function, including the length of time the employee will be unable to perform the essential function(s) and the nature of the essential function, including its frequency, among other things. 

When May Employers Require Documentation?

Employers may only require documentation under the PWFA if reasonable and required to determine whether the applicant or employee has a covered condition and needs a change or adjustment at work due to a limitation caused by the condition. Even then, however, employers are limited to requiring documentation that is sufficient to confirm the condition; confirm the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and describe the change or adjustments needed at work due to a limitation caused by the condition.

Employers must accept an employee’s self-attestation as sufficient documentation when the pregnancy is “obvious,” or the employee seeks one of the “predictable assessments” discussed above as an accommodation.

*  *  *

You may read the final regulation and interpretive guidance here, and the EEOC’s “Summary of Key Provisions” here.

Feeling overwhelmed? Join us for our upcoming webinar, Why You Cannot Ignore the Federal Pregnant Workers Fairness Act, on June 4, 2024, from 9:00 a.m. to 10:30 a.m. PST.  You can register here

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