On April 19, 2024, the EEOC unveiled its final rule implementing the Pregnant Workers Fairness Act (PWFA). This regulation goes into effect June 18, 2024. This final rule requires covered employers to provide reasonable accommodations to qualified employees for known limitations related to pregnancy, childbirth, or related medical conditions.

What You Need to Know

Who are covered employers?

Covered employers under PWFA include public and private employers with 15 or more employees, unions, employment agencies, and the Federal Government, regardless of industry.

What must an employer do?

Provide a reasonable accommodation to qualified employees, unless the accommodation will cause an undue hardship on the operation of the business of the employer.

Who is eligible?

Employees (to include “applicant” and “former employee” where relevant and applicable) with a known limitation(s) related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The PWFA does not apply to a partner, spouse, or family member of the employee. The limitation must be specific to the employee in question.

Understanding the Final Rule

With its final rule, the EEOC also released its interpretive guidance to assist in understanding the final rule. Important definitions and examples to note:

The PWFA defines “known limitation” as follows: “a 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 has communicated to the covered entity, whether or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act.”

Two Types of Qualified Employees

The PWFA has two definitions for a “qualified employee:”

For the first definition, PWFA follows language from the ADA. Specifically, “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.”

For the second, an employee is “qualified” if the employee cannot perform one or more essential functions of the job if the inability to perform the essential function is “temporary,” the employee could perform the essential function “in the near future,” and the inability to perform the essential function can be reasonably accommodated.

The final rule defines the term “temporary” as lasting for a limited time, not permanent, and may extend beyond “in the near future.” The term “in the near future” requires a case-by-case determination. However, the Commission retained “generally 40 weeks” in the final rule as a definition for pregnant employees.

Pregnancy, Childbirth, or Related Medical Conditions

The Commission provided a non-exhaustive list of examples to aid in understanding the terms “pregnancy” and “childbirth.” This includes, but is not limited to, current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatments, and the use of contraception), and labor and childbirth (including vaginal delivery and cesarean section).

With respect to “related medical condition” the Commission’s non-exhaustive list of examples includes, but is not limited to: termination of pregnancy, including via miscarriage, stillbirth, or abortion; ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal (during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstruation; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections.

To be a related medical condition under the PWFA, the employee’s medical condition must relate to pregnancy or childbirth. If an employee has a condition but, in their situation, it does not relate to pregnancy or childbirth, the condition is not covered under the PWFA.

Requesting an Accommodation

To request an accommodation under PWFA, the employee or the “employee’s representative” (which includes the employee’s family member, friend, union representative, healthcare provider, etc.) must make the employer “aware” of the known limitation. There are no specific words an employee must use to make a request for an accommodation. The employee “need only communicate” to the employer that the employee needs an adjustment or change at work due to their limitation. The communication may be made orally or in writing (but it need not be in writing) to the employer.

The communication can be made to a supervisor, a manager, someone who has supervisory authority for the employee or who regularly directs the employee’s tasks, human resources personnel, or another appropriate official, or by following any applicable steps in the employer’s policy to request an accommodation (i.e., employee handbook).

Requesting Supporting Documentation

While not required, if an employer seeks supporting documentation, it is only permitted to do so if, under the circumstances, it is reasonable to do so.

Examples of when it is not reasonable to seek supporting documentation include, but are not limited to: (1) the limitation and the adjustment or change at work needed due to the limitation are obvious and the employee provides self-confirmation; (2) when the employer already has sufficient information to determine whether the employee has a limitation.

Under the final rule, “reasonable documentation” means the minimum documentation that is sufficient to: (1) confirm the physical or mental condition; (2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3) describe the change or adjustment at work needed due to the limitation.

Reasonable Accommodations

A reasonable accommodation includes, but is not limited to:

  1. Making existing facilities used by employees readily accessible to and usable by employees with known limitations under the PWFA;
  2. Job restructuring. Including, without limitation, part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment, uniforms, or devices, including devices that assist with lifting or carrying for jobs that involve lifting or carrying; providing seating for jobs that require standing, or allowing standing for jobs that require sitting; placement in the covered entity’s light or modified duty program or assignment to light duty or modified work; telework, remote work, or change of work site; providing a reserved parking space if the employee is otherwise entitled to use employer-provided parking; and other similar accommodations;
  3. Leave. The ability to use paid and/or unpaid leave during pregnancy; to recover from childbirth, miscarriage, stillbirth, or other related medical conditions; and to attend health care appointments or receive health care treatments related to pregnancy, childbirth, or related medical conditions;
  4. The temporary suspension of one or more essential functions of the position in question, and;
  5. Adjusting or modifying examinations or policies.

Undue Hardship

A covered employer must provide a reasonable accommodation to a qualified employee unless doing so is an undue hardship. The PWFA follows the definition of the ADA for “undue hardship,” which in general means a significant difficulty or expense for the operation of the employer.

Below are factors to consider in determining whether an accommodation would impose an undue hardship. However,  no one factor is dispositive.

  1. The nature and net cost of the accommodation needed;
  2. The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees and the number, type, and location of its facilities;
  3. The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and,
  4. The impact of the accommodation upon 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.

Employers should engage in the interactive process with the employee to identify the limitation and the adjustment or change needed and to discuss potential reasonable accommodations. “Interactive process” means an informal, interactive process between the employer and the employee seeking an accommodation.

What Should Employers Do Now?

Employers should not wait until June 18, 2024, to review their current accommodation policies and practices. Covered employers and entities should develop and/or revise policies and protocols for handling pregnancy-related accommodations.

The final regulation and interpretive guidance can be found here.

If your organization has any questions or requires assistance, we encourage you to reach out to Dykema’s Labor and Employment team who can assist you.