Final Guidance Released on Pregnant Workers Fairness Act

Apr 23, 2024

On April 15, 2024, the Equal Employment Opportunity Commission (“EEOC”) released its final interpretive guidance on the Pregnant Workers Fairness Act (“PWFA”). The PWFA went into effect on June 27, 2023 and generally requires employers to provide reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions, unless such accommodations impose undue hardship on the employer. Additional information on the PWFA (and the Providing Urgent Maternal Protections (“PUMP”) for Nursing Mothers Act) can be found here, in a previous eblast.

In its most recent detailed and voluminous interpretive guidance, the EEOC repeatedly emphasized that requests for accommodations under the PWFA are fact-specific and should be handled on a case-by-case basis. The EEOC stated one of the “key purposes” of the PWFA is to “accommodate these situations [to allow] employees to stay employed.”

Responding to inquiries about which medical conditions may require accommodations under the PWFA, the EEOC appears to adopt a broad interpretation, as it provides that accommodations for fertility treatments, contraception, and abortion may be appropriate under the PWFA. The EEOC reiterated that the PWFA does not require employers or its health plans to provide, pay for, or sponsor any medical procedures or treatment.

The EEOC also includes extensive comparisons and analysis of how the PWFA overlaps with other existing federal laws – including the Americans with Disabilities Act (“ADA”). Though both federal laws contain similar, and sometimes identical terminology, the applications of such terms may vary. For example, notable comparisons between the ADA and PWFA include, but are not limited to:

• A PWFA limitation can be for a physical or mental condition, whether or not such condition meets the definition of “disability” under the ADA.
• Under the PWFA, a “reasonable accommodation” is considered a change in the work environment. Reasonable accommodations under the PWFA may include remote work, change in worksites, frequent breaks, job restructuring (notably including temporarily suspending one or more essential functions of the job, which is a departure from ADA authority), and adjusting equipment, among others. Schedule changes – including leaves of absence and part-time work – may also be considered reasonable accommodations under the PWFA. Importantly, the PWFA prohibits an employer from requiring an employee to take leave if another effective reasonable accommodation exists.
• Both the PWFA and ADA encourage an “interactive process” to determine reasonable accommodations. This means a discussion or two-way communication between an employer and employee to identify the adjustment needed. For PWFA accommodations, an employer may (but is not required to) seek “reasonable” supporting documentation related to the employee’s requested accommodation. Reasonable documentation is described as the minimum documentation to confirm the physical or mental condition, confirm such condition is related to, or affected by, pregnancy, childbirth, or other related medical condition, and to confirm the adjustment needed at work.
• Like with the ADA, employees are not specifically required to mention the PWFA when asking for an accommodation. If an employee requests an adjustment to their work, and connects that adjustment to their pregnancy or a related condition, that is usually going to be enough to trigger an employee’s rights under the PWFA.

Thus, when considering requests for accommodations under the PWFA, employers should be cautious and not immediately assume its typical ADA processes.

One similarity between the two laws, however, is that the PWFA follows the definition of “undue hardship” from the ADA. Generally, “undue hardship” means significant difficulty or expense for the operation of the employer. Examples of factors that may be considered include the length of time the employee will be unable to perform their essential functions, whether there is work for the employee to perform, and whether the essential functions can be postponed or performed by other employees. Like with the ADA, employers should generally plan not to rely upon the undue hardship defense to deny an accommodation.

In sum, the EEOC’s guidance and summary may be a helpful tool that employers can use when evaluating an employee’s specific request for an accommodation pursuant to the PWFA. In addition, going forward, employers should:

• Continue to evaluate employee’s requests for accommodations related to pregnancy, childbirth, or related medical conditions on a fact specific, case-by-case basis.
• Engage in interactive, individualized discussions with employees requesting PWFA accommodations, as soon as possible. Unnecessary delays in making a reasonable accommodation may result in a violation of the PWFA.
• Review existing employment policies and employee handbooks, to determine whether additional PWFA (or PUMP Act) policies should be included.

The EEOC’s final regulations were published to the Federal Register on April 19, 2024, and will go into effect sixty (60) days thereafter, on June 8, 2024.

Stay tuned for updates regarding an upcoming presentation from K|W|W on the PWFA. In the meantime, we encourage you to reach out to any K|W|W attorney if you have any questions about the PWFA, the PWFA’s intersection with existing federal and state laws, or any other employee requests for accommodations in your workplace. K|W|W attorneys will continue to monitor these developments as they occur. At K|W|W, your workforce is our priority.