EEOC expands employers’ requirements to accommodate under PWFA

On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) issued a final rule to implement the Pregnant Workers Fairness Act (PWFA), which became effective on June 18, 2024. The PWFA requires employers to grant employees reasonable accommodations based on a physical or mental condition arising from pregnancy, childbirth, or other related medical conditions. Importantly, the PWFA affects requests for accommodations only and doesn’t govern discriminatory behavior or other adverse employment actions, such as termination.

Reasonable accommodations

Under the PWFA, you must make reasonable accommodations for the known limitations of an employee or job applicant. A reasonable accommodation is a change in the work environment, or the way things are typically done at work. This can include things like:

• Longer, more flexible breaks to eat, drink water, or use the restroom;
• Giving the employee the option to work remotely;
• Changing a uniform or dress code;
• Providing a reserved parking space; or
• Allowing light duty to avoid strenuous manual labor.

To qualify under the PWFA, an employee must be able to perform the essential functions, (i.e., fundamental duties) of the job with or without a reasonable accommodation. An employee may still qualify under the PWFA even if they are unable to perform essential functions of their job if:

• The inability is temporary;
• The employee could perform the essential functions “in the near future” (the EEOC’s rule presumes that “near future” may include the entire length of a pregnancy); and
• The inability to perform the essential functions can be reasonably accommodated.

Recognized limitations

The EEOC’s final rule expansively defines “related medical conditions” of pregnancy and childbirth. Such medical conditions can include menstruation, nausea, breastfeeding, carpal tunnel syndrome, ectopic pregnancy, stillbirth, abortion, and endometriosis. The EEOC’s list isn’t all-inclusive and makes clear that the PWFA covers a broad range of conditions, including those that are “episodic” or “minor.” A limitation can include:

• Additional time for attending to related medical conditions, such as attending increased healthcare appointments or needing time to breastfeed; or
• A physical condition such as morning sickness or migraines.

The EEOC acknowledges in the rule that an employee’s need for accommodations may change as they go through pregnancy and childbirth.

Let it be known

Importantly, the limitation must be known to the employer. Employers aren’t required to make reasonable accommodations for limitations or conditions relating to pregnancy and childbirth if they are unaware of the conditions or limitations.

Despite the requirement that the limitation be “known,” the PWFA loosens requirements for medical documentation, as compared to its Americans with Disabilities Act (ADA) counterpart. Under the PWFA, you may request supporting medical documentation only when it is “reasonable under the circumstances.” For example, supporting medical documentation won’t be necessary if an employee is visibly pregnant or the pregnancy or childbirth is otherwise “obvious.”

Even if supporting documentation is reasonable under the circumstances, you may request only the minimum necessary documentation to understand the employee’s limitation, confirm the condition is related to pregnancy or childbirth, and describe the adjustment needed at work. The documentation may come from any healthcare provider. It isn’t required that the employee bring documentation from their treating physician.

Once you know of an employee’s limitation, you should engage in the interactive process to identify a suitable accommodation.

Exceptions

You may deny a reasonable accommodation if it would cause undue hardship, meaning it would cause you significant difficulty or expense. The EEOC set forth a list of accommodations that won’t be considered an undue hardship on an employer “virtually in all cases.” Those accommodations include:

• Allowing an employee to carry or keep water nearby and drink as needed;
• Allowing an employee to take additional restroom breaks as needed;
• Allowing an employee to sit or stand as needed throughout the workday; and
• Allowing an employee to take breaks to eat and drink as needed.

You must not deny an applicant a position based on their need for a reasonable accommodation. Additionally, you may not require an employee to take leave based on pregnancy or childbirth when a reasonable accommodation would allow them to continue working and may not unreasonably delay providing a requested accommodation. Finally, you must not punish or retaliate against an employee for requesting or using a reasonable accommodation, attempting to exercise their rights under the PWFA, or reporting unlawful action under the PWFA.

Takeaway

You should become familiar with the PWFA and its regulations and may want to consider training supervisors and managers on the law. For example, supervisors should know that employees don’t need to reference the PWFA or use the terms “reasonable accommodation” or “interactive process” to invoke their rights.

Benjamin J. Naylor is a partner of Snell & Wilmer LLP in Phoenix. Ben is a labor and employment litigator and advisor on a range of human resources and employment-related issues, defending employers in agency proceedings and in state and federal litigation of discrimination and retaliation claims, failure to accommodate claims, and wage and hour claims. He can be reached at bnaylor@swlaw.com or 602-382-6044.