Pregnant Workers Fairness Act Key Provisions and Best Practices

By Sonji Winters, J.D., Senior Vice President, PartnerSource

We previously informed you of the passage of the Pregnant Workers Fairness Act (PWFA) that requires certain employers to provide “reasonable accommodations” for an employee with known limitations related to pregnancy, childbirth, or a related medical condition, unless the accommodation will cause the employer an “undue hardship”. Although the law went into effect in June 2023, the Equal Employment Opportunity Commission (EEOC) has just recently released the final rule and guidance to implement the PWFA. The final rule will take effect on June 18, 2024.^[1]

Recently, several state attorney generals challenged the law as unconstitutional. Specifically, the AGs argue the EEOC unconstitutionally exceeded the PWFA's limits by including abortion as a covered condition. No injunction has been entered enjoining the implementation of the final rule. Therefore, most employers are subject to the law at this time.

This article will highlight some of the key provisions of the final rule and provide best practices for applying the law in your workplace.

Key Provisions

The final rule expands the definition of “pregnancy, childbirth, or related medical conditions” to include current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of contraception, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to end a pregnancy. The EEOC clarified that the phrase “related medical conditions” can include not only new physical and mental conditions originating during pregnancy, but also preexisting conditions that are exacerbated by pregnancy or childbirth.

The EEOC confirmed that the condition could be modest, minor, or episodic, and there is no requirement that conditions rise to a specific severity threshold.

A “qualified” employee not only includes those who can perform the essential function of the job, with or without reasonable accommodation, but also employees who cannot perform an essential function of the job for a “temporary period”, if the employee is expected to be able to perform the essential function “in the near future”. The employer must decide whether the inability to perform the essential function can be reasonably accommodated or causes an undue hardship. The final rule did not define “temporary” and only provided guidance as to “in the near future” as “generally 40 weeks from the start of the temporary suspension of an essential function” when the accommodation relates to a current pregnancy.

Potential Reasonable Accommodations

• Breaks
• Schedule changes, part-time work, remote work, paid/unpaid leave
• Reserved parking
• Light duty, temporarily suspending an essential job duty, modifying work environment
• Adjusting policies

Best Practices

Because the EEOC encourages employers to respond quickly to requests for accommodations, it is recommended that an interim accommodation be granted even if additional information is needed, especially if a limitation suddenly arises. Having an unnecessary delay in providing an accommodation is a violation of the PWFA.

Always discuss with the employee the employee’s limitations and needs prior to presenting an accommodation. Employers cannot require employees to accept an accommodation.

Only require documentation that is reasonable under the circumstances to determine a qualifying condition. The EEOC may consider additional documentation or the requirement to use a specific form to be retaliatory. Employers are prohibited from seeking documentation when the limitation and need for an accommodation is obvious or for a lactation accommodation request that does not involve a request for remote work.

Do not use leave as an accommodation default for all requests. The objective of the PWFA is to help employees continue to work. The EEOC does not consider a leave of absence appropriate if another reasonable accommodation can be provided that permits the employee to work.

The EEOC considers certain accommodations de facto “reasonable” unless an employer can show they create an undue hardship. Employers should not require documentation for these accommodations:

• Allowing an employee to keep water in or near the employee’s work area.
• Allowing an employee to take restroom breaks.
• Allowing an employee to sit or stand.
• Allowing an employee to take breaks, as needed, to eat or drink. 

For questions about the PWFA and how it may apply to your business, please contact your PartnerSource team leader.