EEOC's Final Rule Implementing Pregnant Workers Fairness Act Becomes Effective
By Valerie A. Walker | Related Practice: Employment
Washington employers are accustomed to providing robust accommodations to pregnant and nursing employees. New federal regulations implementing the Pregnant Workers Fairness Act (PWFA) recently expanded rights for pregnant and nursing employees, and all employers should review their accommodation policies and practices to ensure compliance.
The PWFA requires employers with at least fifteen employees to provide reasonable accommodations for pregnancy, childbirth, or related medical conditions.
The Equal Employment Opportunity Commission’s (EEOC) final rule and guidance implementing the PWFA became effective on June 18, 2024. Federal Register: Implementation of the Pregnant Workers Fairness Act
Below are three key takeaways regarding this final rule implementing the PWFA:
- The PWFA applies to a broad range of different conditions related to pregnancy and childbirth.
The PWFA requires covered employers to make reasonable accommodations for “known limitations” related to the pregnancy, childbirth, or related medical conditions of a “qualified” employee, unless the employer can demonstrate that the accommodation would impose an undue hardship. The term “known limitation” refers to physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee (or their representative) has communicated to the employer. This definition of “known limitation” could apply to a broad range of different conditions, e.g., infertility, termination of pregnancy, postpartum depression, nausea, etc. The limitation does not need to meet the definition of disability under the ADA.
- Employers may be required to suspend essential job functions.
The PWFA has two definitions of “qualified” employee. The term applies not only to individuals who can perform the essential functions of their position--which is how the ADA defines this term--but also to employees who cannot perform one or more essential functions of the job if the inability to perform is only “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.
An employee who is currently pregnant will likely be able to perform the essential function(s) “in the near future” because a pregnancy-related suspension of duties typically ceases within the 40 week gestational period. Employees with limitations that are not related to a current pregnancy will require a case-by-case of analysis of whether the function can be performed in the near future.
- Employees may confirm need for accommodation without documentation.
Employers should avoid falling back on standard ADA processes for documenting accommodations related to pregnancy, childbirth, or related medical conditions. Employers may only seek documentation if it is “reasonable under the circumstances” to do so. Employers may not seek supporting documentation if the condition or limitation is “obvious.” For example, if an employee reports they are pregnant and is visibly pregnant, an employer may not require a doctor’s note verifying the pregnancy. Nor may an employer request documentation for common types of pregnancy modifications, such as keeping water nearby, taking additional restroom breaks, sitting or standing, breaks to eat and drink as needed, and post-partum lactation breaks. Such accommodations are considered “self-confirmed” by an employee.
The EEOC has published a summary of the significant provisions of its final rule. Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA) | U.S. Equal Employment Opportunity Commission. The summary includes examples of possible reasonable accommodations under the PWFA that may be helpful to review when considering qualified employees’ requests for accommodations.
The PWFA regulations build upon the existing Washington Healthy Starts Act (RCW 43.10.005), which sets out certain accommodations for pregnant workers that are de facto reasonable. Under the Healthy Starts Act, employers with fifteen or more employees must provide pregnant workers the following accommodations, if requested:
- Providing more frequent, longer, or flexible restroom breaks;
- Modifying a no food or drink policy;
- Providing seating or allowing the employee to sit more frequently if the job requires standing; and
- Limiting lifting to no more than 17 pounds.
Employers cannot claim that these accommodations would pose an undue hardship. Other example reasonable accommodations include job restructuring, modified work schedules, reassignment, temporary transfer, scheduling flexibility, and break time to express breast milk. However, these accommodations may be denied if they pose an undue hardship to the employer.
This document is intended to provide you with general information regarding the PWFA regulations. It is likely that further analysis, court challenges, and interpretation may alter the observations in this commentary. The contents of this document are not intended to provide specific legal advice. Please contact a member of the Stokes Lawrence employment group with questions or assistance with compliance regarding the PWFA.
