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Pregnant Workers Fairness Act: What Employers Need to Know

The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. However, on April 15, 2024, the EEOC issued a final regulation to carry out the law, which goes into effect on June 18, 2024. It is important for employers to educate themselves and their managers on this new law to ensure compliance with the new regulation prior to June 18, 2024.

Dahl Consulting provides employment expertise to businesses. We serve as a knowledge base for employers, offering insights into the latest employment law, as well as best practices. In this article, we will cover some of the common questions that employers may have about the PWFA. We will cover what the PWFA is, what this law entails, what changes, and more.

What is the Pregnant Workers Fairness Act?

According to the U.S. Equal Employment Opportunity Commission (EEOC), the Pregnant Workers Fairness Act requires a covered employer to provide a “reasonable accommodation” to a qualified employee’s or applicant’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.”

It is important to note that this law applies only to accommodations and does not override or replace existing legal protections for pregnant workers. Other state and local laws may apply.

Who is protected under the PWFA?

The PWFA protects qualified applicants or employees with known limitations. Known limitations is defined  by the EEOC as, “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” under the Americans with Disabilities Act (ADA).

This law generally applies additional protections for employees affected by pregnancy, childbirth, and/or “related medical conditions.” Due to the broadness of “related medical conditions,” the PWFA provides protections to workers’ current, past, and potential pregnancies. Additionally, this law covers lactation (including breastfeeding and pumping), use of contraception, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.

The EEOC stated that the protections for pregnancy-related conditions expand to existing conditions that were exacerbated by pregnancy, as well as other physical and mental health conditions that originated during pregnancy. One of the key differences to note is that under the PWFA, there is no “level of severity” that must be met as is the case for the Americans with Disabilities Act (ADA). Reasonable accommodations under this law are intended to protect workers whose conditions do not rise to the level of qualifying for disability and to keep workers healthy and comfortable while working.

What counts as a “qualified employee” or “qualified applicant?”

To be classified as a “qualified employee” or “qualified applicant,” they must be able to do the following:

  • Perform essential functions/duties of the job
  • Inability to perform essential functions is deemed to be temporary
  • Inability to perform essential functions/duties can be reasonably accommodated

For example, a cashier may request a stool to sit on as a reasonable accommodation. In this case, they can still perform the essential duties of their job, just in a seated position.

What are “reasonable accommodations?”

Employers with 15 or more employees must make reasonable accommodations for employees and applicants related to pregnancy, childbirth, or related medical conditions.  The following are examples of what may qualify as a reasonable accommodation:

  • Frequent breaks
  • Sitting/standing
  • Schedule changes, part-time work, and paid and unpaid leave
  • Telework or remote work
  • Reserved parking
  • Light duty tasks
  • Making existing facilities accessible or modifying work environment
  • Job restructuring
  • Temporarily suspending one or more essential functions
  • Acquiring or modifying equipment, uniforms, or devices
  • Adjusting or modifying examinations or policies
  • Assistance with manual labor/lifting

Upon request, these accommodations must be provided to qualified employees for up to 40 weeks during an employee’s pregnancy, plus potential additional time following a pregnancy, depending on the circumstance. As long as these accommodations do not put “undue hardship” (defined as significant difficulty or expense) on the employer, accommodations must be granted.

There are four specific accommodations that the EEOC has deemed as de facto reasonable accommodations. The EEOC assumes that the following modifications will not cause an undue hardship to employers in most cases:

  • Permitting employees to carry or keep water and drink, as needed, in their work area or nearby;
  • Permitting employees to take additional restroom breaks, as needed;
  • Permitting employees whose work requires standing to sit, and vice versa, as needed;
  • Permitting employees to take breaks, as needed, to eat and drink.

What does the process of providing reasonable accommodations look like?

Employees or job applicants can request reasonable accommodations related to pregnancy, childbirth, or related medical conditions by informing their employer about their limitations and the need for adjustments or changes in working conditions. This can be done by clearly stating examples like difficulty arriving on time due to morning sickness, needing more bathroom breaks, or time off for medical appointments.

Once informed, employers should promptly engage in an interactive process by communicating with the employee/applicant about their known limitations and the accommodation needed. Employers generally must provide the requested reasonable accommodation, or an alternative effective one, unless it would cause undue hardship to the business operations.

The expectation is that many such accommodations can be granted through simple information exchanges like conversations or emails between the employee/applicant and employer regarding the specific needs arising from pregnancy, childbirth, or related conditions.

Can employers request documentation from an employee’s healthcare provider?

Employers can request that the employee provide documentation from a healthcare provider about their pregnancy-related limitation and need for accommodation, but this should be done judiciously. In many cases, a discussion with the individual may suffice without needing additional documentation.

Employers cannot require medical documentation if:

  • The limitations and accommodation needs are obvious (e.g. a visibly pregnant employee requesting a larger uniform)
  • The employer already has enough information about the limitations and accommodations required
  • The request is for common pregnancy-related needs like bathroom breaks, ability to eat/drink, sit/stand as needed, or lactation accommodations
  • The employer normally wouldn’t require documentation for that situation under their policies

If permitted to seek medical documentation, employers can only request documentation that:

  • Confirms the physical/mental condition
  • Confirms it relates to pregnancy/childbirth/related conditions (doesn’t need to be the sole cause)
  • Describes the specific workplace adjustment or change needed due to the limitation

Any medical information obtained must be kept confidential by the employer under the Americans with Disabilities Act (ADA).

The overall guideline is to avoid requesting unnecessary medical documentation, especially early in pregnancy when it may be difficult to obtain. Employers should avoid asking for documentation supporting proof of pregnancy.

What resources are available for employers?

There are multiple resources available for employers and healthcare providers available on the EEOC’s website. Here is a direct link to the available resources for the PWFA:

In addition to these resources, employers should work with their respective legal departments to ensure compliance with the new PWFA law. Supervisors and managers should also be trained on how to respond to reasonable accommodation requests, as they will likely be the ones receiving them from employees and applicants.

For guidance on evaluating the reasonableness of an accommodation request, you can reach out to the Job Accommodation Network (JAN). This free and confidential service provides expert assistance to both employees and employers regarding reasonable accommodations in the workplace.

We hope that you now have a better understanding of the PWFA. Dahl Consulting provides employers with insights on new employment laws. For information on industry news, employment law, and much more, check out our blog! Or, to get in touch with one of our employment experts, contact us today!