EEOC Issues Regulations Regarding the Pregnant Workers Fairness Act

06.20.2024

The Equal Employment Opportunity Commission (“EEOC”) has issued its final rule and interpretive guidance implementing the Pregnant Workers Fairness Act (“PWFA”).  The final rule (“PWFA Regulations”) was published in the Federal Register on April 19, 2024 and took effect on June 18, 2024.  The following summarizes several of the many topics addressed in the voluminous new PWFA Regulations.

The PWFA, which took effect on June 27, 2023, expands entitlement to reasonable accommodations to employees with a physical or mental condition arising out of pregnancy, childbirth, or a related medical condition under federal law.  The PWFA was passed to extend workplace protections to employees with pregnancy-related limitations that may not qualify as disabilities under the Americans with Disabilities Act (“ADA”).  Our Alert regarding the PWFA can be viewed here.  As explained in our prior Alert, the PWFA created additional obligations for California employers regarding pregnancy and post-partum employee accommodations and leave under the California Pregnancy Disability Leave Act (“PDLA”).  Specifically, the PDLA  already  provides up to four months of job-protected leave to employees disabled by pregnancy, childbirth, or related medical conditions, and reasonable accommodations to those “affected” by such conditions upon the advice of their health care provider.  

The new PWFA Regulations clarify that a “qualified employee” under the PWFA is one who, with or without reasonable accommodations, can perform their essential job functions; or an employee who cannot perform one or more essential job functions, if this inability is temporary, the essential functions could be performed in the “near future,” and the inability can be reasonably accommodated.  The regulations state that while the determination of whether essential functions can be performed in the “near future” should be made on a case-by-case basis, employers generally should presume that this requirement is met if the employee is pregnant because they generally will be able to perform their essential functions again within approximately 40 weeks.

The PWFA Regulations clarify when employers can request documentation of a physical or mental condition arising out of pregnancy, childbirth, or a related medical condition. Notably, the regulations state that employers are only permitted to seek supporting documentation from an employee who has requested accommodation under the PWFA, when it is reasonable under the circumstances to determine (1) whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation), and (2) needs an adjustment or change at work due to the limitation. 

The following are scenarios in which it would not be reasonable for the employer to request supporting documentation from the employee:

• When the physical or mental condition related to, affected by, or arising out of the pregnancy, childbirth, or related medical conditions and the adjustment or change at work that is needed due to the limitation are obvious and the employee provides self-confirmation;
• When the employer already has sufficient information to determine that the employee has a PWFA limitation and the adjustment or change at work needed is due to the limitation;
• When the employee seeks common pregnancy modifications under the PWFA, such as carrying or keeping water nearby for drinking; taking additional restroom breaks; sitting, for those whose duties requires standing, and standing, for those whose duties requires sitting; and taking breaks to eat and drink, assuming the employee provides self-confirmation;
• When the reasonable accommodation is related to a time and/or place to pump breast milk or any other modification related to pumping breast milk at work, and the employee has provided self-confirmation; and
• When the requested accommodation is available to employees without known limitations pursuant to the employer’s policies or procedures, and the employer would not normally request supporting documentation of those employees.

Of note, the EEOC opined that “most PWFA interactive processes will consist of simple exchanges of information between employees and employers, such as brief conversations or emails, and that many of these will be concluded very shortly after the employee with a known limitation requests a reasonable accommodation, without any requests for further information.” The PWFA Regulations also indicate that the “self-confirmation” can be in the written request for an accommodation, another written document (e.g., email, text message), verbal, recorded (e.g., voicemail), or informal. Employers cannot require that it be on a specific form, that it be submitted in writing, that it be any particular length, or that it be verified or accompanied by additional documentation.

Additional documentation can be requested only when reasonable under the circumstances. When permitted, supporting documentation sought by the employer must be reasonably limited to that which is sufficient to confirm the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; describe the workplace adjustment needed in light of the limitation; and provide an estimate of the expected duration of the need for the adjustment.  Neither the employee nor their health care provider is required to provide the employee’s specific medical diagnosis.  The employer can provide a form for requesting supportive documentation, but cannot require that the documentation be submitted on the form. The EEOC also reminded employers who would like to use existing forms drafted with other laws in mind to be sure that they are in compliance with the PWFA and its requirements for accommodations. Additionally, the PWFA Regulations state that employers should consider interim reasonable accommodations if an employee experiences a delay in obtaining documentation.

Further, while employers under the PWFA need not provide accommodations if doing so would pose an undue hardship, the new regulations include a list of certain accommodations which “in virtually all cases” will result in a determination that they are reasonable and will not cause undue hardship when requested by a pregnant employee.  Those accommodations include:

• Allowing an employee to carry or keep water near and drink as needed;
• Allowing an employee to take breaks to eat and drink as needed;
• Allowing an employee to take additional restroom breaks; and
• Allowing an employee whose work position requires standing to sit as needed, and whose job duties requires sitting to stand as needed. 

In light of the new PWFA Regulations, which are quite lengthy and detailed, the EEOC has released two new informational webpages to assist employers: What You Should Know About the Pregnant Workers Fairness Act and Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA).  Both webpages contain valuable resources and additional information for employers about the PWFA and its regulations. 

Employers should keep in mind that the PWFA does not replace or negate federal, state, or local laws or collective bargaining agreements that afford greater or different protections to employees affected by pregnancy, childbirth, or related medical conditions. 

Should you have any questions concerning the PWFA, the PWFA Regulations, or other laws relating to pregnancy, leaves of absence, or accommodations, please do not hesitate to contact the authors of this article or your usual counsel at AALRR.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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