Federal Pregnant Workers Fairness Act (PWFA) Final Rules Goes into Effect June 18, 2024

Employer Alert: Federal Pregnant Workers Fairness Act (PWFA) Final Rules Goes into Effect June 18, 2024

By Liz Hartsel

Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) issued a final rule implementing the  Pregnant Workers Fairness Act (PWFA), which requires most employers with 15 or more employees to provide “reasonable accommodations,” or changes at work, for a worker’s known limitations “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” unless the accommodation will cause the employer an undue hardship.

Although the PWFA has been in effect since June 27, 2023, the final rule and accompanying guidance clarify the obligations under the PWFA. The Final Rule will become effective on June 18, 2024.

Broad Definitions

The PWFA broadly defines “pregnancy, childbirth, or related medical conditions” broadly to include: current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including vaginal and cesarean delivery).

It also broadly defines “related medical conditions” broadly. The EEOC provides non-exhaustive examples, such as termination of pregnancy, including via miscarriage, stillbirth, or abortion, migraines, conditions related to lactation, nausea or vomiting, migraines, carpal tunnel, anxiety, postpartum depression, and edema.

Reasonable Accommodations

The phrase “reasonable accommodation” means the same under the PWFA as under the ADA. Many of the accommodations listed in the PWFA must already be considered for employees with disabilities under the ADA, such as:

  •  Job restructuring
  • The ability to take paid or unpaid leave or attend medical appointments for reasons including, but not limited to, recovery from childbirth, miscarriage, stillbirth, abortion, or medical conditions related to pregnancy or childbirth
  • Reserved parking space
  • Remote work
  • Seating for jobs that typically require standing and standing for jobs that typically require sitting
  • Breaks, a space for lactation, and other related modifications as required under the PUMP Act
  • Accommodations related to nursing during work hours (where the regular location of the employee’s workplace makes nursing during work hours a possibility because the child is in close proximity)

Temporarily Suspension of One or More Essential Functions

Under the PWFA and ADA, employers are required to accommodate “qualified employees.” Under the ADA, employers are qualified only if they can perform all essential functions of their jobs, with or without accommodation. The PWFA, however, provides that an employee can be “qualified” even if they cannot perform one or more essential functions of the job with or without a reasonable accommodation, provided the following conditions are met:

1.      The inability to perform an essential function(s) is for a temporary period; (2)

2.      The essential function(s) could be performed in the near future;

3.      The inability to perform the essential function(s) can be reasonably accommodated.

“Temporary” is further defined to mean “not permanent” but may extend beyond “in the near future” and the rule presumes that 40 weeks is within the “near future.”

Undue Hardship

The PWFA—like the ADA—provides that an employer does not need to make reasonable accommodations for a qualified employee if doing so creates an “undue hardship,” meaning “significant difficulty or expense incurred by the covered entity.” In determining whether an accommodation would impose an undue hardship, the employer should consider the following factors:

  • Nature and net cost of the accommodation
  • The financial resources of the facility
  • The financial resources and type of operation of the employer
  • The impact of the accommodation

Predictable Assessment

In virtually all cases, the EEOC identified four simple modifications that will be found to be reasonable accommodations that do not impose an undue hardship. The four accommodations would allow an employee to:

1.      To carry or keep water near and drink, as needed;

2.      To take additional restroom breaks, as needed;

3.      Whose work requires standing to sit and whose work requires sitting to stand, as needed; and

4.      To take breaks to eat and drink, as needed.

Seeking Documentation

Under the PWFA, an employer can only seek supporting documentation when reasonable under the circumstances.

Ongoing Litigation

The PWFA is already facing opposition from 17 states (Colorado is not one of them) because it defines “related medical conditions” to include abortions and, therefore, requires an employer to provide unpaid leave for an employee to receive abortion care or recover from an abortion. 

The final rule, however, emphasized that “this rulemaking does not require abortions or affect the availability of abortion; it simply ensures that employees who choose to have (or not to have) an abortion can continue participating in the workforce by seeking reasonable accommodations from covered employers, as needed and absent undue hardship.” In other words, the EEOC is taking the position that the termination of a pregnancy (including abortion) necessitates healthcare.  We will continue to monitor this litigation.

What Should Employers Do to Comply with the PWFA?

Employers should:

  • Review their accommodation policies to ensure compliance with the PWFA and applicable state and city laws and
  • Ensure supervisors and HR understand the PWFA requirements and company responsibilities to recognize potential employee requests for accommodations.

If you have questions about ensuring compliance with the PWFA or state pregnancy accommodation laws in your workplace, please contact a Fortis employment law team member. 

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