Employer Alert: Seven Things Employers Need to Know About the Pregnant Workers Fairness Act (PWFA) Final Regulation

July 19, 2024

On June 18, 2024, the Equal Employment Opportunity Commission (“EEOC”) enacted the final regulation implementing the Pregnant Workers Fairness Act (“PWFA”).

The PWFA requires a covered entity (typically an employer) to provide reasonable accommodations for a worker’s pregnancy-related limitations, absent undue hardship to the covered entity.

We offer an overview of key provisions below.

1. What is a Covered Entity?

The Act covers both private and public sector employers (and state and local governments) with 15 or more employees. Members of Congress, federal agencies, employment agencies, and labor organizations also are covered.

2.     How Does the Rule Define Pregnancy-Related Conditions?

Pregnancy, childbirth, or related medical conditions include uncomplicated pregnancies, vaginal deliveries or c-sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.

The EEOC’s Interpretive Guidance provides that menstruation, contraception, infertility/fertility treatment, and abortion also may constitute pregnancy-related medical conditions because they have a nexus to a current or prior pregnancy; may affect an employee’s potential pregnancy; or may affect an ability to become pregnant. Accommodations may include allowing time off for treatment/procedures and recovery (employers are not required to provide or pay for procedures or travel-related expenses).

3.     To Whom Does the PWFA apply?

The PWFA applies to qualified employees or applicants. An employee or applicant may be “qualified” if:

  • An employee/applicant can perform the essential functions of the job, with or without reasonable accommodation; or

  • An employee cannot perform the essential functions of the job, so long as:

    • The inability to perform an essential function is “temporary”;

    • The employee could perform the function(s) “in the near future”; and

    • The inability to perform the essential functions can be reasonably accommodated.

The second prong is unique to the PWFA and recognizes that most pregnancy-related conditions do not last indefinitely. Therefore, employers may have to temporarily accommodate an individual’s inability to perform the role’s essential functions.

4.     How Do Employees Request a Reasonable Accommodation?

Employees do not need to use “magic words” to request an accommodation. They must, however, inform their employer of the following:

  • That they have a physical or mental limitation related to, arising out of, or affected by pregnancy, childbirth, or a related medical condition; and

  • That they need an adjustment or change in working conditions due to the limitation.

Once an employer receives this notice, it must either grant the requested accommodation or engage in the interactive process in an effort to mutually agree to an alternative accommodation.

5.     What Does the PWFA Prohibit?

Employers cannot:

  • Fail to make a reasonable accommodation for the known limitations of an employee/applicant, unless the accommodation would cause undue hardship to the employer;

  • Require an employee to accept an accommodation other than one arrived at through the interactive process;

  • Require an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working; or

  • Punish or retaliate against an employee/applicant for requesting or using a reasonable accommodation; reporting or opposing unlawful discrimination under the PWFA; or participating in a PWFA proceeding.

6.     Are There State Laws That Also Govern This Area?

Employers also should be aware of state laws that apply to pregnancy-related conditions. The Massachusetts PWFA, for example, applies to employers with six (6) or more employees.

7.     What Can Employers Do to Ensure Compliance?

  • Employers should consider whether additional training is necessary for supervisory employees, to ensure that they understand how to respond to requests for accommodation.

  • For assistance with identifying potential accommodations, employers should consult the Job Accommodation Network (JAN) (askjan.org).

  • Covered employers must post a notice describing the law’s protections in a conspicuous location in the workplace.

Legal Challenges

Since the final regulation took effect, several states have sought to block the provisions requiring accommodations for abortion. This is the subject of ongoing litigation.

For further information about the PWFA, contact Allyson E. Kurker and Margaret H. Paget at Kurker Paget LLC.