On April 15, 2024, the EEOC published its Final Rule on the application and interpretation of the Pregnant Workers Fairness Act (“PWFA”). The Final Rule provides regulations and guidance for employers regarding the interpretation of the law, as well as enforcement guidance. The Final Rule was published in the Federal Register on April 19, 2024, and the regulations will go into effect 60 days thereafter.
Here are some major takeaways:
An employee’s word is (usually) enough. The regulations state that a limitation is “known” once an employee “communicates” the limitation to the employer. Therefore, automatically requesting proof of pregnancy (or childbirth/related conditions) is likely to be considered a violation of the law and possibly could lead to a retaliation claim.
“Pregnancy…and related medical conditions” includes a past pregnancy, fertility treatments, and the use of contraception. The regulations specifically state that “pregnancy, childbirth, and related medical conditions” include attempts at becoming pregnant and a miscarriage. Based on the intent of the law, employers should not limit the PWFA to only those employees who are pregnant or may have just delivered. The regulations list a number of non-exhaustive “conditions,” including post-partum depression, menstruation, and lactation.
The employee does not have to identify a medical condition or use medical terms. There is no need for the employee to specify a medical condition—they only need to state that they are pregnant, were pregnant, or are experiencing post-pregnancy issues.
Four automatically reasonable accommodations. The EEOC considers the following accommodations as reasonable in almost every situation:
- Allowing an employee to carry or keep water near and drink as needed;
- Allowing an employee to take additional restroom breaks;
- Allowing an employee to sit and stand as needed; and
- Allowing an employee to take breaks to eat and drink.
Medical certification may only be requested when reasonable. The EEOC makes it clear that an employer may (but is not required) to seek medical documentation—but tread carefully. The medical documentation must be narrowly tailored and may only be used when the need for accommodation is not obvious and where the employee had not provided self-confirmation. Further, if the employee seeks an accommodation listed in point 4 (above), it would not be reasonable for the employer to ask for medical documentation.
Employers cannot force an employee to take leave. An employer may not force an employee to take leave (paid or unpaid) if another reasonable accommodation is available.
An unnecessary delay can result in a violation of the law. An employer may violate the PWFA if it takes too long to provide a reasonable accommodation. This means that if an employer requires medical documentation, it would be a best practice to provide the accommodation requested in the interim to avoid exposure to litigation.
The temporary removal of essential functions may be appropriate. As one of the EEOC’s recommended reasonable accommodations, the temporary removal of “essential functions” may be warranted. There are several factors to consider, but the fact the EEOC identifies this as a possible reasonable accommodation means that employers must be careful when determining that a certain accommodation is not reasonable in light of the essential functions of the position.
Overall, covered entities (public and private employers with 15 or more employees) must be very careful when evaluating an employee’s need for accommodations under the PWFA. The PWFA extends to conditions that may not be considered disabilities under the Americans with Disabilities Act, so employers must adjust when an employee expresses a need for an accommodation related to pregnancy, getting pregnant, or post-partum.
Should you have any questions about the Final Rule and Pregnant Workers Fairness Act, please feel free to contact any member of our Labor and Employment team.
The information contained in this document does not constitute legal advice.
