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EEOC issues final rule on Pregnant Workers Fairness Act

4/18/24

By: Carleigh J. Belardo

Earlier this week, on April 15, 2024, the Equal Employment Opportunity Commission (“EEOC”) issued its final regulation to carry out the Pregnant Workers Fairness Act (“PWFA”). The final rule was approved by a majority of the EEOC on April 3, 2024 and will become effective sixty (60) days after publication in the Federal Register, which is currently scheduled to happen on April 19, 2024.  

The provisions of the PWFA require most employers with fifteen (15) or more employees to make reasonable accommodations for qualified job applicants or employees who possess a known physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.  

An employee or applicant can be “qualified” for accommodations under the PWFA in two ways. Many employees will be qualified under the first form of qualification, which holds that an employee or applicant who can perform the fundamental duties of their job with or without reasonable accommodation is qualified. This is because many employees or applicants for a job will be able to perform the essential functions of the job with a reasonable accommodation, such as sitting on a stool, taking an extra bathroom break, or carrying around a bottle of water. 

If an employee or applicant cannot perform the essential functions of the job with or without a reasonable accommodation, they can still be qualified under the PWFA as long as three (3) requirements are met:  

1) the inability to perform the essential job functions is temporary;  

2) the employee could perform the essential functions in the near future; and  

3) the inability to perform the essential functions can be temporarily reasonably accommodated.  

In other words, an employee whose limitation renders them unable to perform essential functions of their job, even with a reasonable accommodation, may be able to obtain an accommodation temporarily excusing them from their essential job functions altogether. Examples of these types of accommodations include a temporary move to light duty or a different work assignment.  

It is important to note that the PWFA only requires employers to make reasonable accommodations and will not require an employer to make an accommodation that will cause them undue hardship and create significant difficulties or expenses for the employer. Examples of reasonable accommodations under the PWFA include, but are not limited to:  

• allowing for additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom; 
• making exceptions to a uniform or dress code or providing safety equipment that fits;  
• changing a work schedule to include shorter hours, part-time work, a later start time, or telework; or 
• granting leave for healthcare appointments and to recover from childbirth or medical conditions related to pregnancy and childbirth. 

It is also important to recognize that accommodations may need to change throughout an employee’s pregnancy, and the employer and employee should communicate regarding the employee’s needs as their pregnancy progresses.   

To request an accommodation, the employee simply needs to tell their employer that they have a limitation that relates to, arises out of, or is affected by their pregnancy, childbirth, or related medical conditions and therefore they require an adjustment or change in their working conditions to accommodate that limitation. Once the employer is informed of this limitation, they should respond promptly, and communicate with the employee to determine and develop the adjustments the employee requires.  

Moving forward under the PWFA, it is important for employers to actively and clearly communicate with their employees who are pregnant, have recently given birth, or have experienced a new medical condition related to pregnancy or childbirth. As noted above, an employee’s limitations may change throughout her pregnancy and after childbirth, and under the PWFA, the employer is required to accommodate those changing limitations. Employers may also benefit from familiarizing themselves with different types of accommodations that may be available for qualifying employees in order to prepare for accommodation requests as they arise.  

For more information, please contact Carleigh Belardo at carleigh.belardo@fmglaw.com or your local FMG attorney.