New EEOC Rule on Pregnant Workers Fairness Act

On April 15, the Equal Employment Opportunity Commission issued its final rule implementing the Pregnant Workers Fairness Act. The PWFA requires employers to provide pregnant workers or workers who have known limitations arising out of pregnancy, childbirth or related medical conditions with “reasonable accommodations” unless doing so would impose an “undue hardship” on the employer's business. A reasonable accommodation generally means a change in the work environment or how things are usually done in order to remove work-related barriers, and an undue hardship is typically defined as something causing significant difficulty or expense. The regulation takes effect on June 18, 2024.

Before exploring the nuances and application of this rule, it is imperative to clarify the scope and breadth of the PWFA. First, it only applies to accommodations; it does not govern firing or otherwise discriminating against employees on the basis of pregnancy, childbirth or related medical conditions. Second, the PWFA applies to all private employers and public sector employers that have 15 or more employees. Last, the PWFA does not replace any other federal laws that still could apply to workers affected by pregnancy, childbirth or related medical conditions. Therefore, employers must still consider and comply with Title VII, the ADA, FMLA and PUMP.^[1]

PWFA Highlights

The PWFA borrows terminology from the ADA, and much of it can be applied in a similar way. Key differences between the PWFA and the ADA include:

• The PWFA, with this rule, is much more prescriptive than the ADA, with tighter limits on things like requesting medical documentation or requiring an interactive process.
• Four identified accommodations presumptively must always be granted without delay and without spending time on the interactive process: (1) carrying a water bottle; (2) sitting, standing or alternating; (3) additional breaks for resting; and (4) additional breaks for eating and drinking. These are called “predictable assessments.”
• Temporary exemption from performing an essential function of the job might be a reasonable accommodation.
• Five identified situations presumptively will never justify an employer’s request for medical documentation: (1) any of the four presumptively reasonable requests; (2) the need (and why) is obvious; (3) employer already has sufficient information; (4) pumping or nursing requests; and (5) other employees would not have to supply documentation for similar requests not related to pregnancy.
• Three identified questions might justify an employer’s request for minimally sufficient medical documentation when needed to confirm: (1) what the condition is, (2) that the condition is in some way related to pregnancy, and (3) what is being requested.
• Supervisors must be trained and ready to respond without delay — often by granting a presumptively reasonable accommodation request, rather than by deferring to Human Resources and slowing down the accommodation by engaging in an interactive process.

The PWFA is similar to the ADA in the following respects:

• Leave as an accommodation, unless specifically requested by the employee, should be a last resort.
• Undue hardship is a high bar. Supervisors and/or HR need to be ready to provide the affected employee with a full explanation for denying a requested accommodation.

Many Conditions Covered by the PWFA

The PWFA has been controversial to some because it includes abortion as a “related medical condition.” But employers should be aware that the PWFA covers far more than abortion and pregnancy. The EEOC offers the following non-exhaustive list for clarification, and employers should consider the PWFA when one of their employees has any of the following conditions and requests an accommodation:

• Current pregnancy, past pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, postpartum depression, gestational diabetes, preeclampsia, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and having or choosing not to have an abortion, among others.

Add to this EEOC list: nausea, vomiting, carpal tunnel syndrome, frequent urination, fatigue, lactation, etc.^[2]

Practical Tips for Employers

Employers should take steps now to ensure they are in compliance when the PWFA’s rules go into effect. Those steps include:

• Begin training first-level supervisors before the June 18 effective date. The threshold for making a request is low (no “magic words” required), and failure to efficiently respond can lead to a violation. Employers should consider which supervisors are most likely to receive these requests and train them on how best to respond.
• Be prepared to immediately and effectively offer the four predictable assessments. Employers should inform every supervisor that these accommodations should be granted without delay.
• Ensure that supervisors and HR professionals understand not to claim undue hardship without thinking it through and having a concrete explanation that will be shared with the requesting employee.
• Understand that the PWFA covers more than just pregnancy. It has a broad scope, so employers should inform their supervisors to consider accommodations for any employee that mentions any difficulty at work due to any condition that stems from or could be related to pregnancy. Although accommodations may not be necessary in every instance, the PWFA rules highlight that a failure to even engage with the interactive process can, and likely will, result in a violation.
• Prepare a list of interim accommodations that can be readily offered with little to no hardship to the employer. This will reduce concerns surrounding unnecessary delay and grant the employer additional time to explore the best possible solution for itself and its employees.
• Understand that the PWFA anticipates an employee’s accommodations may change as the pregnancy and related medical conditions progress. Recognize that a one-time accommodation may not be sufficient and the interactive process is ongoing.
• Avoid immediately requesting medical documentation from an employee seeking an accommodation. Train supervisors and HR to first consider whether the employee falls within the five scenarios where it is always unreasonable to seek medical documentation. If not, the supervisor or HR must determine the minimum amount of medical documentation necessary to confirm the condition, confirm the condition falls under the PWFA, and describe the necessary adjustment. Requesting any more than the minimum documentation may be considered retaliation.
• As with the ADA, be careful to protect the privacy of medical information and to store it separately from any other personnel information.

For assistance evaluating and considering changes to your accommodations policies and practices in light of the EEOC’s PWFA rule, or with training HR and supervisors, contact a member of Robinson Bradshaw’s Employment & Labor Practice Group.

[1] The Americans with Disabilities Act (as amended), the Family and Medical Leave Act (as amended), and the Providing Urgent Maternal Protections for Nursing Mothers Act.

[2] Carpal tunnel syndrome is a common symptom of pregnancy, brought on by swelling. Note also that “morning sickness” can happen at any time of day or night.