KHVPF Insight
EEOC’S Pregnant Workers Fairness Act Regulations Are Full-Term
The EEOC’s newest little bundle of regulations implementing the Pregnant Workers Fairness Act took effect on June 18, 2024. As a reminder, the PWFA requires employers to provide reasonable accommodations to employees or applicants with “known limitations” related to “pregnancy, childbirth, or related medical conditions,” even if those limitations don’t rise to the level of a disability under the Americans with Disabilities Act.
Here are the biggest takeaways from the EEOC’s finalized regulations:
Who must comply?
Private and public sector employers with 15 or more employees; Congress; federal agencies; employment agencies; and labor organizations.
What are “limitations”?
Physical and mental conditions, even minor, modest, or episodic ones like headaches or morning sickness. This includes conditions caused by pregnancy or childbirth, and also pre-existing conditions exacerbated by pregnancy, childbirth, or related medical conditions.
What makes a limitation “known”?
An affirmative communication to the employer by the employee or a representative, including a verbal report to an immediate supervisor. The report does not have to specifically mention the ADA or PWFA.
How are “pregnancy, childbirth, [and] related medical conditions” defined?
The EEOC’s “non-exhaustive” definition includes current, past, or potential pregnancy; infertility or fertility treatment; labor; childbirth; lactation; menstruation; postpartum depression; miscarriage; stillbirth; use of contraception; and having or choosing not to have an abortion.
What if an employee is unable to perform an essential function of his or her job?
The employer must still accommodate the employee if the inability to perform the function will only last for a “temporary period” and the essential function can be resumed “in the near future.” This requires a case-by- case determination, but it is presumed that a pregnant employee can resume the essential function within 40 weeks.
How long can the interactive process last?
The regulations require employers to complete the interactive process to determine a reasonable accommodation with “expediency,” and an “unnecessary delay” in implementing a reasonable accommodation can itself be a violation of the PWFA. As a result, employers may choose to grant interim accommodations while the interactive process is ongoing.
What would be a reasonable accommodation?
An accommodation that does not impose an undue hardship on the employer. The EEOC has stated that four accommodations are presumptively reasonable and should be granted in almost every circumstance: (1) additional restroom breaks; (2) food and drink breaks; (3) allowing water and other drinks to be kept nearby; and (4) allowing standing or sitting as necessary. Further, unlike in the ADA context, temporarily suspending one or more essential job functions can be a reasonable accommodation and a leave of absence is an accommodation of last resort, available only if no other reasonable accommodations are available.
When can an employer request documentation to support an accommodation request?
Only when it is “reasonable” for the employer to need the documentation to determine whether the employee has a limitation covered by the PWFA. Supporting documentation cannot be required if (1) the employee’s pregnancy is obvious or the employer knows about the limitation; (2) the employee seeks one of the four presumptively reasonable accommodations listed above; (3) the request is for a lactation accommodation; or (4) when the accommodation is available without documentation for other employees seeking the same accommodation for non-PWFA reasons.
Given the nuances of these regulations, and their departure from regulations under the ADA, employers should closely review their existing policies and procedures for handling accommodation requests to determine if they need to be revised.