The Equal Employment Opportunity Commission (EEOC) released its final regulations and interpretative guidance implementing the Pregnant Workers Fairness Act (PWFA) on April 15, 2024. The Guidance will be effective on June 18, 2024.
The PWFA requires employers to provide pregnant workers or workers who have a condition related to pregnancy or childbirth with reasonable accommodations unless doing so would impose an “undue hardship” on the employer’s business.
The Guidance is extensive, but the following are some highlights:
- The PWFA only applies to the employee experiencing the condition, not the employee’s partner, spouse, or family member.
- Broad coverage for eligible employees:
- The Guidance broadly defines pregnancy, childbirth, or related medical conditions (including conditions related to abortion).
- The condition does not have to rise to the level of disability under the Americans with Disabilities Act (ADA).
- The PWFA does not provide accommodations for bonding or childcare.
- Length of accommodation:
- The employee must be able to perform the essential functions of the job or if the employee cannot perform the essential functions, she must be able to do so “in the near future” and the inability to perform the essential functions can be reasonably accommodated.
- Mandated interactive process:
- Employers cannot require an employee to accept an accommodation without first going through the interactive process.
- Documentation:
- Employers are only permitted to seek supporting documentation if it is reasonable under the circumstances. For example, if a worker who is obviously pregnant, states or confirms that they are pregnant, and asks to avoid lifting heavy objects, it may be reasonable for the employer to request documentation about the extent of the lifting restriction and its expected duration, but not about the pregnancy itself.
Already the Guidance is seeing challenges. Specifically, on April 25, 2024, seventeen Republican state attorneys general sued the EEOC challenging the requirement that employers must allow employees to take the necessary time off to obtain or to recover from an abortion, despite the Guidance not requiring employers to provide or pay for an abortion or travel-related expenses.
It has yet to be seen what will become of this challenge as well as what additional challenges the Guidance will face. In the meantime, employers should encourage managers and supervisors to reach out to HR and legal counsel before denying a pregnancy-related accommodation.
