The Pregnant Workers Fairness Act (“PWFA”) went into effect on June 27, 2023, and requires covered entities to provide reasonable accommodations to employees or applicants with known limitation related to pregnancy, childbirth, or related medical conditions, absent undue hardship. The U.S. Equal Employment Opportunity Commission (“EEOC”) recently released a Final Rule about how it will interpret and enforce the PWFA, which goes into effect June 18, 2024. Employers’ understanding of their obligations under the PWFA has greatly expanded over the last year, particularly in light of the newly implemented Final Rule. We’ve highlighted the most pertinent elements of the PWFA and the Final Rule below:
Effective Date: |
PWFA Effective Date: June 27, 2023 Final Rule Effective Date: June 18, 2024 |
Who Is Covered?
- Employers with 15 or more employees (consistent with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII));
- Individual applicants/employees (not an employee’s family member); and
- Employees experiencing pregnancy, childbirth, and related medical conditions.
- NOTE: Unlike the Family Medical Leave Act (FMLA), there is no minimum requirement for hours worked or length of employment to be eligible for accommodations.
Broad Definition of Covered Conditions:
The PWFA covers known limitations related to pregnancy, childbirth, or related medical conditions. A known limitation is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, related medical conditions that the employee or employee’s representative communicated to the covered entity, whether or not such condition meets the definition of disability specified by the ADA.
The PWFA includes a non-exhaustive list of 34 conditions for which employees may be granted reasonable accommodations absent undue hardship. Covered conditions include current pregnancy, past pregnancy, potential or intended pregnancy (including infertility, fertility treatment, and contraception), labor, and childbirth. Related medical conditions such as endometriosis, sciatica, carpal tunnel syndrome, chronic migraines, high blood pressure (and more) are also covered.
Importantly, the condition need not rise to the level of a disability as specified in the ADA to qualify for coverage under PWFA. There is no threshold of severity to overcome: even modest, minor, and/or episodic limitations are covered. If connected to pregnancy or childbirth, a medical condition is covered even if it is not the sole, the original, or a substantial cause of the physical or mental condition at issue. Employers are likely to encounter requests for relief involving pre-existing conditions exacerbated by pregnancy and childbirth.
Qualified Employee:
Unlike the ADA, the PWFA defines “qualified employee” in two ways. An employee (or applicant) is qualified when:
- With or without reasonable accommodation, the employee can perform the essential functions of the job; OR
- The employee has an inability to perform an essential function for a temporary period, the essential function could be performed in the near future, and the essential function could be reasonably accommodated (i.e., does not create an undue hardship).
The definition of “temporary” remains the same as the proposed rule, but the final rule clarifies that determinations for “in the near future” must be made on a case-by-case basis. “Temporary” means lasting for a limited time, not permanent, and may extend beyond in the near future. For current pregnancies, it is presumed that essential function(s) can be performed in the near future, meaning within 40 weeks, from the start of the temporary suspension. For situations other than a current pregnancy, the final regulation guides that a determination of “in the near future” should be made at the time when an employee asks for each accommodation that requires suspension of one or more essential functions.
Reasonable Accommodations:
Similar to the ADA, the PWFA requires employers to provide reasonable accommodations to qualified employees with known limitations. Reasonable accommodations may include modifying work schedules, offering light duty assignments, temporarily transferring employees to different departments or roles, allowing additional breaks, providing assistive devices, reserved parking, remote work, and beyond.
Certain accommodations are presumptively reasonable. Known as the “predictable assessments,” these accommodations include:
- allowing an employee to carry or keep water near and drink, as needed;
- allowing additional restroom breaks;
- allowing employees who frequently sit to stand and who frequently stand to sit;
- allowing an employee to take breaks to eat or drink, as needed.
While providing reasonable accommodations is required, an employer may not require a qualified employee to accept an accommodation other than one arrived at through the interactive process. Employers are expressly prohibited from requiring qualified employees to take leave if another reasonable accommodation can be provided that does not cause an undue hardship.
Request Process:
The PWFA aims to increase flexibility for employees requesting accommodations, encourages quick compliance, and rejects a rigid response from employers.
- Notice to Employer: Employees or their representatives may make accommodation requests. The request may be verbal or written, and an employer cannot deny an accommodation due to the employee not making a written request. The Act requires an employer to respond when a request is made to anyone with authority to direct an employee’s tasks, specifically including a supervisor, manager, someone with supervisory authority, an employee who regularly directs the employee’s tasks, human resources personnel, or another appropriate official.
- Interactive Process: Once notified, the employer should promptly engage in the interactive process. Communication with the employee helps understand and explore potential accommodations. The regulations anticipate that most accommodations will be handled through informal conversations and email. Delays in providing accommodations, including third-party administrators, may violate the PWFA.
- Assessment and Decision: Employers must assess potential accommodations based on the employee’s known limitations. However, accommodations should not cause undue hardship to the business. Accommodations temporarily suspending one or more essential functions may be necessary. Potential future accommodation requests from other employees cannot serve as a basis for failing to provide a current accommodation. A decision must be made timely to avoid claims of unnecessary delay.
- Implementation: Employers should promptly implement reasonable accommodations. If an accommodation would cause under hardship, the employer must inform the employee accordingly.
Limited Opportunities to Seek Documentation:
The PWFA generally discourages employers from requesting documentation. Employers may seek documentation only when “reasonable under the circumstances” and even then, the employer is limited to seeking the minimum that is sufficient to:
- Confirm the physical or mental condition;
- Confirm that the physical or mental condition is related to, affected by, or arises out of pregnancy, childbirth, or related medical conditions; and
- Describe the adjustment or change at work needed due to the limitation and an estimate of the expected duration of the need for the adjustment or change.
The final rule modified the term “self-attestation” to “self-confirmation” to minimize the amount of formality involved in obtaining an accommodation. Self-confirmation by employees is an informal process designed to provide quick and efficient access to accommodations. When self-confirmation is permitted, employers may not require the statement to be in a specific format, use specific words, or be on a specific form.
The PWFA specifically prohibits employers from seeking documentation under the following five circumstances:
- The limitation is obvious and the employee provides self-confirmation (i.e., larger uniforms for an employee in the latter stages of pregnancy);
- The employer has sufficient information to determine an employee’s qualifying limitation (i.e., when an employee already submitted documentation notifying the employer of the limitation);
- When the requested accommodation involves a “predictable assessment” (i.e., access to drinking water, bathrooms, sitting/standing, breaks for eating/drinking).
- When the reasonable accommodation is related to a time, place, or other modifications related to pumping at work, or a time to nurse during work hours, and the employee provides self-confirmation.
- When the employer’s own policies or practices do not require documentation.
Lactation Accommodations:
The PWFA expands the protections for lactating employees. Reasonable accommodations for lactation include breaks, a space for lactation, and other related modifications required under the PUMP Act. However, the final rule provides additional requirements ensuring that:
- The area for lactation is in reasonable proximity to the employee’s usual work area;
- That it is a place other than a bathroom;
- That it is shielded from view and free from intrusion;
- That it is regularly cleaned;
- That it has electricity, appropriate seating, and a surface sufficient to place a breast pump; and
- That it is in reasonable proximity to a sink, running water, and a refrigerator for storing milk.
The final rule adds a new requirement that employers must accommodate nursing (as opposed to pumping) during work hours if the child is in close proximity. Additionally, the rule’s interpretive guidance implies PWFA protections for lactating employees go beyond the one-year limitation included in the PUMP Act.
Avoid Prohibited Practices:
The PWFA final rule and interpretive guidance contains several new terms, processes, and restrictions. The final rule specifically prohibits employers from:
- failing to provide reasonable accommodations;
- requiring employees or applicants to accept an accommodation;
- denying employees equal employment opportunities;
- requiring employees to take leave when another reasonable accommodation is available; and
- taking adverse action against employees seeking or using an accommodation.
Employer Takeaways:
- Train Employees to Recognize Accommodation Requests.
Employers should train employees to recognize reasonable accommodation requests. Notice of an accommodation request is effective when shared with various employees, including those who regularly direct tasks. Prompt action is required when an accommodation request is made.
- Engage in the Interactive Process Early.
The PWFA limits damages based on an employer’s “good faith effort” to provide reasonable accommodations. Employers can use interim reasonable accommodation while determining overall reasonable accommodations. Accommodations must be granted up to the point when they become an undue hardship.
- Revise Reasonable Accommodation and Performance Policies.
The general rule under the ADA that employers do not have to waive a production standard as a reasonable accommodation does not apply to reasonable accommodations under the PWFA. Employers must adjust policies to allow for temporarily suspending essential functions for PWFA-protected employees. Policies should avoid penalizing employees regarding productivity quotas, attendance, and mandatory overtime during accommodation periods.
- Understand Documentation Limitations.
Employers should carefully consider when to seek documentation to avoid PWFA violations. Employers cannot compel employees or healthcare providers to use a specific form or seek more than the minimum documentation that is sufficient to determine a reasonable accommodation. Properly maintaining confidentiality of medical documentation is crucial. Improper disclosure exposes an employer to litigation and damages.
- Learn From the Examples.
The interpretive guidance includes 78 examples of how the PWFA applies to common workplace situations. While limited, these examples offer insight into the evaluation process used by the EEOC when reviewing employee complaints.
Aimed at enhancing employee retention and accommodating pregnancy-related conditions, the EEOC’s comprehensive 408-page final rule and interpretive guidance becomes effective June 18, 2024. Employers must acquaint themselves with the new terms, processes, and restrictions to create compliant policies and avoid violations. The Labor & Employment Group at Woods Aitken is here to help answer all of your PWFA compliance questions.
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