On April 19, 2024, the EEOC published the final regulations implementing the Pregnant Workers Fairness Act (“PWFA”), which will be codified in 29 CFR 1636 and will go into effect as of June 18, 2024.
PWFA’s Reasonable Accommodation Requirement
PWFA requires employers to provide reasonable accommodations to qualified employees (including applicants) with “known limitations” related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship. PWFA greatly expands what an employer was previously required to accommodate as it relates to pregnancy-related accommodations.
Under PWFA, a “known limitation” is defined as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” whether or not the condition meets the definition of a “disability” under the Americans with Disabilities Act (“ADA”). That is, an employee can be entitled to a reasonable accommodation for a known limitation relating to pregnancy, childbirth, or related medical conditions, even if the limitation is not otherwise a “disability.”
An employee is “qualified” if they, “with or without reasonable accommodation, can perform the essential functions of the employment position.” Importantly, however, unlike accommodations for disabilities under the ADA, PWFA allows an employee to be “qualified” even if they cannot perform one or more essential functions of the job if the inability to perform the essential function(s) is “temporary,” the employee could perform the essential function(s) in the “near future,” and the inability to perform the essential function(s) can be reasonably accommodated.
The Final Regulations
The final regulations go into great detail regarding implementation of PWFA and provide numerous examples for reference. While this article identifies some of the key takeaways from the final regulations, it does not exhaustively identify every regulation or example.
What is a “known limitation”?
Under the final regulations, a “known” limitation is one that has been communicated to an employer. A “limitation” can include: (1) an impediment or problem that may be modest, minor and/or episodic; (2) a need or problem related to maintaining the employee’s health or the health of the pregnancy; or (3) seeking health care related to pregnancy, childbirth, or a related medical condition itself.
An employee is “qualified” even if unable to perform the essential functions of the position.
Under the ADA, an employee is no longer considered a “qualified employee” requiring reasonable accommodation if the employee, with or without reasonable accommodation, cannot perform the essential functions of the position.
As articulated in the final regulations, PWFA differs from the ADA in its clarification that an employee can still be “qualified” even if an employee is unable to perform one or more of the essential functions of their position if the inability to do so is (1) “temporary,” (2) the employee could perform the essential functions “in the near future,” and (3) the inability to perform the essential functions can be reasonably accommodated.
“Temporary” is defined as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” With respect to pregnancy, “in the near future” is generally within forty weeks. However, whether an employee can perform the essential functions of the position “in the near future” in situations other than pregnancy, must be analyzed on a case-by-case basis.
With respect to whether the inability to perform the essential functions of the position can be “reasonably accommodated,” the regulations provide suggested ways a temporary suspension of essential functions can be reasonably accommodated. Depending on the position, the essential functions may be temporarily suspended (with or without reassignment to someone else) and the employee:
-
- Continues to perform the remaining functions of the job;
- May be assigned other tasks to replace the essential functions;
- May perform the functions of a different job to which the employer temporarily transfers or assigns them; or
- May participate in the employer’s light duty or modified duty program.
The regulations reiterate that employers are going to need to consider more than one alternative to identify potential reasonable accommodations that do not create an undue hardship when a qualified employee is temporarily unable to perform the essential functions of the position.
What are “reasonable accommodations”?
The regulations identify several specific examples of possible reasonable accommodations:
-
- Frequent breaks
- Sitting/standing
- Schedule changes
- Part-time work
- Paid and unpaid leave
- Telework
- Parking
- Light duty
- Making existing facilities accessible or modifying the work environment
- Job restructuring
- Temporarily suspending one or more essential functions
- Acquiring or modifying uniforms, equipment, or devices
- Adjusting or modifying examinations or policies
The regulations also identify modifications that “in virtually all cases” will be found to be reasonable accommodations that do not pose an undue hardship:
-
- Carrying or keeping water near and drink, as needed;
- Taking additional restroom breaks, as needed;
- Allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
- Taking breaks to eat and drink, as needed.
What constitutes an “undue hardship”?
Generally, the undue hardship analysis will remain the same as it has been under the ADA, with one important distinction. Because PWFA provides that an employer may have to accommodate an employee’s temporary inability to perform one or more essential functions of the position, the regulations identify additional factors to consider in determining whether a temporary suspension of one or more essential functions causes an undue hardship:
-
- Consideration of the length of time the employee will be unable to perform the essential functions;
- Whether there is work for the employee to accomplish;
- The nature of the essential functions, including frequency;
- Whether the employer has provided other employees in similar positions who are unable to perform the essential functions of their positions with temporary suspensions of those functions and duties;
- If necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential functions in question; and
- Whether the essential functions can be postponed or remain unperformed for any length of time and, if so, for how long.
Can an employer request documentation to support an accommodation request?
An employer is not required to seek supporting documentation from an employee who requests an accommodation. If the employer does, it can only do so if it is reasonable to require documentation under the circumstances in order for the employer to determine whether the employee has a physical or mental condition related to, affected by, or rising out of pregnancy, childbirth, or related medical conditions and needs a change or adjustment at work.
The regulations identify situations where it is not reasonable to request documentation:
-
- When the limitation and need for reasonable accommodation are obvious (i.e., when the employee is obviously pregnant);
- When the employee has already provided sufficient information to substantiate that the employee has a known limitation and that a change or adjustment at work is needed;
- When the employee is pregnant and the reasonable accommodation is one of the four accommodations that will be deemed reasonable in “virtually all cases”; and
- When the limitation for which the accommodation is needed involves lactation or pumping.
Even when a request for documentation is reasonable, any such request must be limited to “reasonable documentation.” “Reasonable documentation” is defined as documentation that is sufficient to confirm (1) the physical or mental condition; (2) that the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3) and that a change or adjustment at work is needed.
What are the prohibited practices under the regulations?
Under PWFA, it is unlawful for an employer to:
-
- Not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, absent undue hardship;
- Require an employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
- Deny employment opportunities to an employee if the denial is based on the need or potential need of the employer to make reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions;
- Require an employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee, absent an undue hardship;
- Take adverse action in terms, conditions, or privileges of employment against an employee on account of the employee requesting or using a reasonable accommodation.
Importantly, the regulations also indicate that:
-
- An unnecessary delay in responding to a reasonable accommodation request could constitute a violation of PWFA; and
-
- An employer cannot justify the denial or delay of a reasonable accommodation based on an employee failing to provide supporting documentation unless the supporting documentation is reasonable under the circumstances.
Bottom Line
The final regulations are a good resource for understanding the scope of PWFA and contain numerous examples and illustrations for reference. This is particularly important given the implementation of PWFA will broaden an employer’s obligation to permit reasonable accommodations beyond prior legal requirements.
Employers should revisit their pregnancy-related accommodations policies. To the extent such policies are based on the ADA, they will likely need to be revised to comply with PWFA and its implementing regulations.
Note, the PWFA does not replace federal, state, or local laws that are more protective of employees affected by pregnancy, childbirth, or related medical conditions. Minnesota law requires employers provide reasonable accommodations to employees “for health conditions related to pregnancy or childbirth,” unless the accommodation will cause an undue hardship on the operation of the employer’s business. Minnesota’s pregnancy accommodation statute applies to employers with one or more employees, while PWFA applies to employers with 15 or more employees.