At the end of 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) into law. The Act, among other things, requires employers to offer reasonable workplace accommodations to workers who are pregnant, or have a condition related to pregnancy or childbirth, unless the accommodation would cause the business an undue hardship. The law applies to employers with 15 or more employees.
On April 15th, the Equal Employment Opportunity Commission (EEOC) unveiled its final rule on the implementation of PWFA. In its final rule, the EEOC maintained a broad meaning of “pregnancy, childbirth, or related medical conditions” to remain in line with how courts and the agency itself have interpreted the phrase as it appears in Title VII of the Civil Rights Act. This interpretation indicates that the PWFA will apply to workers with a number of medical conditions, including lactation, endometriosis, infertility, fertility treatments, and miscarriages.
The final rule provides a few examples of what could constitute “reasonable accommodations” for pregnant employees. A reasonable accommodation could take the form of any of the following: (1) frequent breaks; (2) sitting/standing; (3) schedule changes, part-time work, and paid and unpaid leave; (4) telework; (5) parking; (6) light duty; (7) making existing facilities accessible or modifying the work environment; (8) job restructuring; (9) temporarily suspending one or more essential functions; (10) acquiring or modifying equipment, uniforms, or devices; or (11) adjusting or modifying examinations or policies.
Other notable provisions of the final rule include:
An employer is not required to seek supporting documentation from an employee or applicant who requests an accommodation under the PWFA. If an employer decides to seek supporting documentation, it is only permitted to do so if it is reasonable to require documentation for the employer to determine whether the employee has a physical or mental condition and needs a change or adjustment at work due the limitation.
An unnecessary delay in making a reasonable accommodation may result in a violation of the PWFA.
When choosing among effective accommodations, the employer must choose an accommodation that provides the qualified employee equal employment opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges as are available to the average employee without a known limitation who is similarly situated.
An employee is not required to accept an accommodation.
The PWFA prohibits an employer from requiring a qualified employee with a known limitation to take leave, either paid or unpaid, if another effective reasonable accommodation exists, absent undue hardship.
The final rule goes into effect 60 days from April 19, 2024. We will continue to monitor further regulations as they are published. If you have any questions regarding how the Act or the final rule will affect your business, please reach out to me or your BrownWinick employment attorney.
