We Are Expecting! The New Pregnancy Accommodation Regulations Will Surprise You

The Pregnant Workers Fairness Act (PWFA) requires most employers to provide reasonable accommodations for pregnancy-related conditions. While the PWFA statute includes familiar concepts, the implementing regulations reveal that the Equal Employment Opportunity Commission (EEOC) intends to interpret the law broadly.

 

Details matter when employers are developing policies and practices in the workplace. Consider answers to these questions in handling requests for pregnancy accommodations.

 

What are the basics of the Pregnant Workers Fairness Act?

The PWFA requires employers with 15 or more employees to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions unless accommodation would cause an undue hardship.

 

The EEOC’s final regulations took effect June 18, 2024. The federal law shares some concepts with the Americans with Disabilities Act (ADA), Title VII, and the Family and Medical Leave Act (FMLA). But, the new PWFA regulations have some novel concepts that employers must understand.

 

What are “pregnancy, childbirth, or related medical conditions”?

The PWFA only requires that an employee state they are experiencing a condition caused in part by pregnancy, childbirth, or a “related condition.” The PWFA regulations cover a broad group of pregnancy-related conditions, including but not limited to:

• Pregnancy loss, stillbirth, abortion
• Preeclampsia, gestational diabetes, nausea, vomiting, migraines
• Prolapse, wound infection
• Carpal tunnel syndrome (caused or exacerbated by a pregnancy-related condition)
• Edema of limbs
• Anxiety, depression, psychosis (including post-partum)
• Lactation and conditions related to lactation
• Infertility, fertility treatment, use of contraception
• Potentially menstruation (“on a case-by-case basis”)

 

The rules also prohibit employers from asking employees to take a pregnancy test to entitle them to an accommodation.

 

What makes an employee “qualified” under the PWFA?

A “qualified” employee is a familiar concept from the ADA. Most of us understand that an employee is “qualified” for their job under the ADA if they can perform the essential functions of their job with or without a reasonable accommodation.

 

The PWFA forges a new path. Under the PWFA, if an employee’s proposed accommodation would eliminate an essential function (for example, routinely lifting 25 pounds or more), they may still be entitled to a pregnancy accommodation and be considered “qualified” for an accommodation.

 

What about temporary, transient, or episodic pregnancy-related conditions?

One question that comes up is how the PWFA handles temporary, transient, or episodic pregnancy-related conditions. The ADA does not require employers to accommodate conditions that are “transient and minor.” The PWFA, in contrast, will require accommodations for temporary medical conditions that interfere with an employee’s work. For example, the PWFA regulations indicate that an employee’s morning sickness, which is, for the pregnant employee’s sake, hopefully temporary or episodic, will generally require an accommodation by an employer if the morning sickness impacts the employee’s ability to perform the job.

 

Also, the EEOC, which will enforce the PWFA and the regulations, has indicated that it will expect employers to provide pregnancy-related accommodations for temporary conditions—although the provision is not contained in the PWFA itself. The EEOC’s counsel advised that the EEOC perceives “temporary” limitations as ones that may resolve within 40 weeks or less, which is the period of time of a gestational pregnancy.  

 

How does an employee request an accommodation under the PWFA?

 The regulations require that employees request an accommodation under the PWFA by “following the steps in the covered entity’s policy to request an accommodation.” This means that if employers do not have an accommodation policy specific to pregnancy, they would be wise to revise the policy for clarity on that process.

 

The policy should state how employees request an accommodation. It cannot be a complex or technical process, which could amount to interference. The policy should offer clear direction on who an employee should talk to and how to reach them.  

 

Additionally, the regulations allow an employee’s representative to request an accommodation for them. A “representative” may include the employee’s:

• direct family member
• friend
• union representative
• health care provider
• some generic “other” person

 

How does the interactive process work under the PWFA?

The interactive process for a PWFA accommodation is different from the ADA interactive process. Like the ADA, a PWFA accommodation request must be a two-way communication or discussion in writing, oral conversation, or a mix.

 

PWFA requests veer away from the ADA process when it comes to requesting medical documentation. The PWFA regulations indicate that, as a general rule, if an employee is requesting an accommodation under the PWFA, employers cannot ask for medical documentation.

 

There is, however, an exception to this blanket prohibition. Unfortunately, the exception is vague. Employers can request medical documentation if it is “reasonable under the circumstances” to determine whether there is a condition requiring the accommodation or an adjustment needs to be made to their position due to the limitation. This, of course, begs the question: When it is “reasonable under the circumstances,” and who decides whether it’s reasonable?

 

There is another critical difference from the ADA’s interactive process. Under the ADA, an employer can provide an alternative suitable accommodation to the employee, and the employee cannot insist on the employee’s preferred accommodation. That is not the case under the PWFA’s process.

 

What will always qualify as a “reasonable accommodation” under the PWFA?

The EEOC clarified several accommodation requests must, as a general matter, be provided: 

• Carry or keep water nearby to drink.
• Take additional restroom breaks.
• Sit or stand as needed.
• Take breaks to eat and drink as needed.

 

What is an undue hardship?

An undue hardship under the PWFA appears to be fairly similar to the ADA’s definition. Generally, it is some kind of significant difficulty or expense, such as an accommodation that would create safety issues or require other employees to work substantially harder than what they may be accustomed to working. Undue hardship could also potentially amount to conduct that could jeopardize product quality or inhibit operations.

 

What are best practices?

A few best practices can help employers remain compliant with this new law:

• Training: Train supervisors, leads, and managers on how to address pregnancy accommodation requests. Ensure they know when to include HR in discussions. Explain what they can and cannot say when an employee requests a pregnancy-related accommodation.
• Policies: Update accommodation forms and policies. Include pregnancy accommodation requests on any disability form templates. Or create a new form for pregnancy accommodations that need medical documentation.
• Documentation: Have supervisors document all conversations about pregnancy accommodations. It can be as simple as an email to HR indicating the supervisor permitted a pregnant employee to have a water bottle at the workstation or that they have been excusing the employee for more frequent bathroom breaks.
• Preparation: Offer “interim” accommodations while evaluating more complex accommodation requests. An employer could face a violation if it takes too long to evaluate and implement a covered employee’s request.

 

Finally, this law will be challenged. It will go through interpretive changes as courts weigh in on the enforceability and meaning of the regulations. The changes may impact best practices.

 

For advice about specific situations related to the PWFA in your workplace, contact your Nyemaster Labor & Employment attorney.