In recent years, the United States has made significant strides in protecting the rights of pregnant workers through new legislation. The most notable advancement is the Pregnant Workers Fairness Act (PWFA), which was signed into law on December 29, 2022, and took effect June 27, 2023.
The legislation requires most employers with 15 or more employees to provide reasonable accommodations to a qualified employee’s (or applicant’s) known limitations relating to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer undue hardship.1 Undue hardship generally means causing significant difficulty or expense for the employer’s operation.
On April 15, 2024, nearly nine months after the PWFA took effect, the U.S. Equal Employment Opportunity Commission (EEOC) finally published a final rule implementing the PWFA; the final rule went into effect on June 18, 2024.
This new protection ensures that pregnant workers can continue their employment safely and without discrimination, marking a significant step forward in workplace equality and maternal health support. To help employers better prepare for this new worker protection and continue to provide excellent workforce experience, here are a few key highlights of the final ruling:
Broad Scope of Covered Limitations and Conditions
The final rule provides broad coverage regarding the types of limitations and medical conditions for which employees may seek reasonable accommodation, such as:
- Infertility and fertility treatment
- Menstruation
- Migraines
- Stillbirth
- Miscarriage
- Abortion
- Lactation and issues with lactation
- Contraception use
- Episodic pregnancy-related illnesses (e.g., nausea, preeclampsia, morning sickness)2
There is no threshold of severity needed for these conditions for the employer to be obligated to consider providing reasonable accommodation.
The Interactive Process
Like the Americans with Disabilities Act, employers must engage in an “interactive process” with employees to determine a reasonable accommodation under the PWFA. The final rule clarifies that the interactive process is informal, and no exacting steps need be followed during the process. Nevertheless, the EEOC’s final rule limits an employer’s ability to seek supporting documentation during the interactive process regarding an employee’s condition.
Limited Opportunity to Request Supporting Documentation
Although the final rule encourages employees and employers to openly communicate about reasonable accommodation needs, the rule also states that employers may obtain medical documentation from an employee only if it is reasonable under the circumstances to determine if the employee has a qualifying condition or limitation needing a workplace accommodation.
Examples of Reasonable Accommodations
A reasonable accommodation is a change to the work environment, or the way things are usually done in the workplace, that assists an otherwise qualified individual in performing their job. Specific examples of reasonable accommodations identified under the PWFA final rule include:
- Frequent breaks
- The ability to sit or stand
- Using a restroom
- Schedule changes
- Paid leave
- Telework
- Light duty
- Temporary suspension of an essential job function
- Job restructuring
- Making facilities accessible
- Reserved parking
- Modifying equipment or policies
- Other changes that do not cause the employer undue hardship
Undue Hardship Factors
Under the PWFA and final rule, an employer is not obligated to accommodate an employee if the accommodation will cause undue hardship to the employer. Factors to examine when determining if undue hardship exists include:
- The accommodation’s nature and net cost
- The employer’s overall financial resources, the number of employees at the employer’s facility, and the accommodation’s effect on employer expenses and resources
- The employer’s financial resources, its overall size, and the number, type, and location of its facilities
- The type of employer operation
- The effect the accommodation has on the employer’s operation (including its impact on the ability of other employees to perform their job and the facility’s ability to conduct business)
Interplay of the PWFA with Other Laws
The PWFA does not inhibit the rights of employees or applicants affected by pregnancy, childbirth, or related conditions under any federal, state, or local law providing equal or greater protection.
What Does PWFA Mean for Employers?
To achieve workforce compliance, employers must ensure that relevant supervisors and managers are sufficiently trained in the PWFA and its rules, so they know how to properly respond to an accommodation request. Supervisors and managers must understand that the PWFA’s primary goal is to find ways for employees to continue working while pregnant if that is the employee’s choice.
The PWFA, including its final rule, covers more issues than what is discussed in this article. It is a complicated law. Employers should consult legal counsel if they have any questions regarding implementing the intricacies of the PWFA in its workplace.
