New Measures to Protect Pregnant Workers

PUBLISHED NOVEMBER 2023

Last December, President Biden signed into law a measure that has significant effects on companies with at least 15 employees. The Pregnant Workers Fairness Act requires covered employers to provide reasonable accommodations to applicants’ and employees’ known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operations of the business. 

The Pregnancy Discrimination Act prohibits discrimination against pregnant employees, and the Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with certain conditions related to pregnancy. The PWFA, designed to fill in certain gaps in coverage under the PDA and the ADA, mirrors the ADA in several manners, while deviating from the ADA in several key aspects worth highlighting. 

The PWFA directed the Equal Employment Opportunity Commission to craft regulations to carry out the law, and it issued proposed regulations in August 2023, which should be finalized shortly now that the public comment period has closed.

In the proposed regulations, the EEOC broadly defines “related medical conditions” to include infertility and fertility treatments, past pregnancy, endometriosis, birth-control use, menstruation, miscarriage, stillbirth, having an abortion, postpartum depression, lactation, and post-pregnancy limitations or complications. Notably, the inclusion of infertility treatments and menstruation leaves open the possibility that the PWFA will be interpreted to apply to men, and extends PWFA coverage to cover the bulk of an employee’s career.  

Under PWFA, reasonable accommodations include making existing facilities readily accessible to individuals with known limitations, job restructuring, re-assignment, leave, part-time schedules, reserved parking spaces, allowing telework, removing an essential function, assigning an employee to light duty, and adjusting or modifying policies. 

EEOC categorizes four accommodations as predictable assessments that employers should grant in virtually all cases without requiring supporting documentation or extensive individualized assessment. These accommodations, which rarely constitute an undue hardship, include allowing an employee to carry water and drink in their work area, take additional restroom breaks, sit in jobs that require standing and stand in jobs that require sitting, and take breaks as needed to eat and drink. 

While employers may be familiar with requests for supporting documentation under the ADA, documentation rights vary under the PWFA. Like the ADA, employers are not required to seek documentation, but may do so if it is reasonable for them to determine whether to grant the accommodation. 

However, the proposed regulations identify four circumstances where employers may not seek supporting documentation: (1) where “the limitation and the need for reasonable accommodation are obvious” and the employee self-attests to the same; (2) when the individual has provided enough information to substantiate the known limitation and need for an accommodation; (3) where the accommodation is one of the four predictable assessments that should be granted in virtually all cases, as noted above, and the individual self-attests; and (4) if the accommodation is related to lactation or pumping and the individual self-attests. 

Unlike the ADA, which defines a qualified individual as someone able to perform essential job functions with or without reasonable accommodations, the PWFA defines qualified individual to include individuals who cannot perform one or more essential job functions, so long as a pregnancy-related condition causes the inability to do so, the inability to perform the essential function is temporary and the employer can reasonably accommodate the employee’s inability to perform the essential function.

Drawing on the standard length of pregnancy, the proposed EEOC regulations currently define “in the near future” as 40 weeks from the date the employee is unable to perform an essential job function. Notably, this 40-week period is triggered each time an individual requests an accommodation. Thus, an employee unable to perform an essential function during pregnancy triggers a 40-week period; if subsequently unable to perform a different essential job function because of a post-pregnancy condition, another 40-week period is triggered.

As the EEOC finalizes regulations, employers may wish to review their policies and current accommodation processes. Employers may consider implementing a PWFA policy, and tailor forms specific to PWFA accommodations. Additionally, employers may wish to ensure they are using the current EEO poster, which includes applicable PWFA provisions, and multi-state employers may want to review varying state pregnancy accommodation requirements.