The Pregnant Workers Fairness Act aka the EEOC’s New Baby

Kody Condos

The Pregnant Workers Fairness Act (PWFA), the newest member of the family of federal anti-discrimination laws, is almost one year old! Instead of inviting employers over for cake and photo ops, after one year of accepting charges of discrimination under the law, the U.S. Equal Employment Opportunity Commission’s (EEOC) has gifted employers with its interpretive guidelines instead. If you do not know them already, keep reading. The PWFA differs from other anti-discrimination laws in some very important ways that employers will want, and need to understand.

JT Washington

The PWFA went into effect on June 27, 2023. The EEOC’s regulations governing the PWFA go into effect on June 18, 2024. Like the Americans with Disability Act (ADA), the PWFA requires covered employers to provide qualifying employees and applicants accommodations to perform their work duties safely and without discrimination or retaliation.

This post covers key provisions of the PWFA and the EEOC’s regulations governing the law.

Under the PWFA:

covered employers are required to affirmatively make reasonable accommodations related to the pregnancy, childbirth, or related medical conditions of qualified employees and applicants, unless the accommodation presents an undue hardship to the employer. These accommodations are in addition to the current anti-discrimination laws protecting pregnant workers;
the group of individuals qualified to request an accommodation under federal law is expanded to include employees and applicants who may have a temporary inability to perform an essential job function due to pregnancy or a related condition;
qualified employees will not be required to show that the underlying condition meets a specific severity threshold, nor will they need to specify a condition on the non-exhaustive list of examples provided by the EEOC;
in certain situations, employers will be restricted from requesting medical documentation related to a covered employee’s request for an accommodation and are prohibited from retaliating against employees or applicants who request a pregnancy-related accommodation.

Covered Employers and Qualified Employees

Under the PWFA, private and public employers who have fifteen or more employees must accommodate qualified employees unless the entity can demonstrate that the accommodation would cause an “undue hardship.”

The PWFA defines qualified employees in two ways. First, the PWFA uses similar language to the Americans with Disabilities Act (ADA), stating that a qualified employee is one who “with or without reasonable accommodation, can perform the essential functions of the employment position.” Second, the PWFA protects employees or applicants even if they cannot perform one or more essential functions of the job if the inability is “temporary,” the employee could perform the functions “in the near future,” and the inability to perform the functions can be reasonably accommodated.

The EEOC explains that the term “temporary” means something that will last for a limited time, is not permanent, and may extend beyond what is “in the near future.” For current pregnancies, the EEOC assumes employees may perform the essential functions “in the near future” because the pregnancy ends within 40 weeks of the suspension of the essential function. The EEOC clarifies, however, that this assumption does not mean that the essential function must always be suspended for 40 weeks, or that if an accommodation is requested that lasts for 40 weeks, it must be granted automatically. For conditions other than a current pregnancy, the regulations do not define a specific time for “in the near future.” Rather, in those cases, the EEOC instructs that the meaning of “in the near future” is to be determined on a case-by-case basis.

Known Limitations

The PWFA defines “known limitation” as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the covered entity, whether or not such condition meets the definition of disability” under the ADA. The physical or mental condition can be minor, modest, or episodic (e.g., migraines or morning sickness), and again, does not need to rise to the level of a “disability” under the ADA. The PWFA prohibits employers from taking adverse action in terms, conditions, or privileges of employment against qualified employees or applicants who have known limitations. Employers are also prohibited from requiring qualified employees who have known limitations to take leave – whether paid or unpaid – if another effective accommodation exists, absent an undue hardship. Employees who have a “known limitation” due to pregnancy, childbirth, or related medical conditions, may request a reasonable accommodation and may expect their employer to grant the requested accommodation or an equally effective accommodation in the absence of an undue hardship.

Covered Conditions

The PWFA and EEOC provide an expansive (and non-exhaustive) list of what constitutes a “pregnancy, childbirth, or related medical condition[].” “Pregnancy” and “childbirth” refer to the pregnancy or childbirth of the specific employee in question and include, but are not limited to, current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including vaginal and cesarean delivery).

“Related medical conditions” may include termination of pregnancy, including via miscarriage, stillbirth, or abortion;[1] ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal (during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstruation; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections. Physical and mental conditions that originate during pregnancy, as well as pre-existing conditions that are exacerbated by pregnancy or childbirth may also qualify as a “related medical condition.” According to the EEOC, even “modest, minor, and/or episodic” conditions may need to be accommodated, and employers may not consider ameliorative measures.

Accommodations and the Interactive Process

Like the ADA, once an employer has notice that a qualified employee or applicant has limitations and a related need for an accommodation, the employer and employee must engage in the interactive process, including the two-way collaboration from the initiation phase through selection of the accommodation that does not cause the employer undue hardship. An accommodation presents an undue hardship if it causes the employer significant difficulty or expense when compared to the specific employer’s resources.

Reasonable accommodations under the PWFA also differ in some respects from those provided under the ADA. The EEOC provided a list of potential accommodations that would address known limitations related to pregnancy, childbirth, or related medical conditions, including:

making existing facilities used by employees readily accessible to and usable by employees with known limitations under the PWFA;
job restructuring;
part-time or modified work schedules;
breaks for use of the restroom,
drinking, eating, and/or resting;
modifying equipment, uniforms, or devices (including devices that assist with lifting or carrying for jobs that involve lifting or carrying);
providing unpaid leave; telework, remote work, or change of work site; temporarily suspending one or more essential functions; and adjusting or modifying examinations or policies.

The EEOC also provides four “predictable assessments” where, according to the EEOC, in virtually all cases, the reasonable accommodation will not be found to impose an undue hardship on the employer. These include: (1) allowing an employee additional restroom breaks, (2) allowing an employee to carry water and drink, as needed, in the employer’s work area, (3) allowing an employee breaks, as needed, to eat and drink, and (4) allowing an employee whose work requires standing to sit and those whose work requires sitting to stand.

Importantly, employers must engage in the interactive process to ascertain what kind of accommodation is needed, and are prohibited from mandating an accommodation that is not selected by the worker.

Lactation Accommodations

The EEOC provides further detail regarding reasonable accommodations for lactation, imposing greater requirements than the PUMP Act in three important respects: (1) unlike the PUMP Act, PFWA accommodation obligations do not cease 1 year after birth; (2) the PWFA does not exempt the same categories of employees the PUMP Act exempts; (3) the accommodation scope is greater than PUMP in that the PWFA requires the lactation location be in reasonable proximity to a sink, running water, and a refrigerator; and (4) under the PWFA nursing during the workday may be a reasonable accommodation where the regular location of the employee’s workplace is in close proximity to the child. The location of a refrigerator to store milk, and electricity may also affect the amount of break time needed under the PWFA.

Restrictions on Seeking Supporting Documentation and Requesting Disclosure of Medical Information

While an employer can seek medical information from an employee’s healthcare provider under reasonable circumstances, unlike the ADA, the employer may not require workers seeking accommodations be examined by a healthcare provider selected by the employer. All inquiries related to the accommodation request should continue to be limited to business necessity.

The EEOC has also limited employers’ entitlement to request supportive documentation – documentation that confirms a physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Under the PWFA regulations, supportive documentation can only be requested in reasonable circumstances, and the documentation itself must also be reasonable. According to the EEOC, it is not reasonable to seek supporting documentation when:

The limitation and need for an adjustment or change at work due to limitation is obvious;
The employer already has enough information to understand that the employee has a physical or mental condition related to, affected by, or arising out of a limitation and the resulting need for an accommodation;
The employee is currently pregnant and seeks one of the four “predictable assessment accommodations” (e., needs breaks for the restroom or to eat or drink, needs to carry water with them to drink, or needs to stand if their job requires sitting or to sit if their job requires standing);
The employee is lactating, provides self-confirmation, and needs modifications to pump at work or nurse during work hours (but the employer can request documentation if the employee requests full-time remote work for pumping); or
When the employer would provide an accommodation to employees without known limitations under the PWFA pursuant to a current policy or practice without the need for supporting documentation.

It is important that employers understand, pregnancy, childbirth, or related medical conditions need not be the sole, original, or substantial cause of the physical or mental condition for a qualified employee to receive accommodations under the PWFA.

What comes next?

The PWFA and EEOC regulation build on pre-existing federal law and apply to different employees in different ways. Employers should refresh themselves on state and federal leave an accommodation requirements, and familiarize themselves with the distinctions between the PWFA and the ADA, Title VII, FMLA, the PUMP Act, and related state and local laws. Employers should prioritize collaborating with counsel to educate and train HR and management to comply with PWFA requirements. Employers should also examine and update their policies to comply with the EEOC’s interpretive guidance on the PWFA so that they can comply with the PWFA’s obligations.

[1] On April 25, 2024, a group of seventeen states filed a lawsuit in the United States District Court for the Eastern District of Arkansas, challenging the EEOC’s final regulation on the PWFA for including of abortion as a “related medical condition.” The Complaint asserts five separate causes of action and asks the Court to enjoin the implementation of the final regulation pending the Court’s final ruling. Specifically, the plaintiff states allege that the EEOC exceeded its statutory authority construing the PWFA to include abortion. The EEOC has responded that “the PWFA’s requirements [as to abortion] are narrow and will likely concern only a request by a qualified employee for leave from work.” Two more states have also filed lawsuits against the EEOC and seek an injunction.