The Federal Pregnant Workers Fairness Act’s Accommodation Demands on Employers: What You Should Know

On June 27, 2023, the United States Congress passed the Pregnant Workers Fairness Act (PWFA) in an effort to expand protections for employees and applicants who are pregnant, trying to become pregnant, or recently experienced pregnancy. Specifically, the PWFA requires a covered employer to provide for “reasonable accommodations” to qualified employees and applicants known to have certain limitations related to, or arising out of, pregnancy, childbirth, or related medical conditions, unless the requested accommodations create an “undue hardship” on the employer.

Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) issued its Final Rule (regulation) interpreting the scope of the law. The Final Rule was issued on April 15, 2024, and published in the Federal Register on April 19, 2024, and indicates the agency’s broad interpretation of the protections and accommodations given to qualified individuals, as well as the requirements for covered entities for protecting those rights. The Final Rule is scheduled to become effective on June 18, 2024.

Which Employers Are Subject to the PWFA?

The PWFA applies to covered entities. A covered entity according to the EEOC includes private and public sector employers with more than 15 employees. The PWFA also applies to Federal agencies and labor organizations.

Who does the PWFA Protect?

The PWFA provides reasonable accommodations for qualified employees or applicants with known limitations or restrictions related to pregnancy, childbirth, or related medical conditions that have been adequately communicated to a covered entity. The condition need not be severe in nature; rather, the condition may be an “impediment or problem that is modest, minor, or episodic.” Furthermore, a qualified condition does not need to meet the statutory definition of a disability under the Americans with Disabilities Act (ADA) of 1990 to obtain protections under the PWFA.

Concerning applicable medical conditions that could be “related” to pregnancy or childbirth, the final rule provides a non-exhaustive list of qualified afflictions including termination of pregnancy (whether by medically induced abortion, miscarriage, or stillbirth), anxiety, depression, gestational diabetes, preeclampsia, urinary complications, and more.

Who is a “Qualified Employee” or a “Qualified Applicant”?

According to the EEOC, an employee or applicant can be qualified under the PWFA in two ways:

First, an employee or applicant who can perform the “essential functions” of the job with or without reasonable accommodation is deemed qualified. Essential functions are those that are fundamental to the duties and responsibilities the relevant job requires.

Second, if an employee cannot perform the essential functions of the job with or without accommodation, an employee may still be qualified even if they are unable to perform an essential job function so long as they can perform the essential function “in the near future,” and the essential function can be reasonably accommodated. Thus, an employee may be granted a reasonable accommodation in the form of a temporary reassignment, or a change in work-related responsibilities.

The Final Rule provides that “in the near future” requires a case-to-case analysis; however, in cases of current pregnancy, there is a generalized presumption that 40 weeks is an appropriate period.

What Are “Reasonable Accommodations” Under the PWFA?

“Reasonable accommodations” are changes in the work environment or tailored alterations to the typical operations and functions of the employee’s job. In virtually all cases, the final rule provides that four modifications for pregnant employees will be reasonable accommodations that do not impose an undue hardship. They are:

1. allowing the employee to carry or keep water near and drink as needed;
2. allowing additional restroom breaks;
3. allowing the employee to sit or stand as necessary; and
4. allowing the employee ample eating and drinking breaks as necessary.

The EEOC acknowledges that these situations may pose an undue hardship for employers, noting that their predictive measures do not alter the definition of undue hardship, and stressed the importance of conducting an individualized assessment of each requested accommodation.

What is “Undue Hardship” Under the FWTA?

An employer is permitted to refuse reasonable accommodation under the PWFA if it causes the employer an undue hardship. “Undue hardship” means a significant difficulty or expense. A generalized conclusion will not suffice to support a claim of undue hardship; rather, undue hardship must be based on an individualized assessment of current circumstances that tends to show that a specific reasonable accommodation would create significant hardship. A determination of undue hardship should be based on several factors including:

1. the nature and cost of the accommodation;
2. the financial resources available to grant the accommodation;
3. the type of operation, including the structure, size, and functions of the workforce, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
4. the impact of the accommodation on the operation of the facility.

In addition, the Final Rule provides additional factors in the analysis concerning a request for a temporary suspension of an essential function. They include:

1. the length of time the employee will be unable to perform the essential function;
2. the nature, and frequency of the essential function;
3. whether the employer has provided similar opportunities for accommodations to similarly situated employees;
4. the ability of other employees to perform the essential function’ and
5. whether the essential function can be postponed or remained unperformed for a significant length of time.

How Should Employers Respond to Requests for Reasonable Accommodations?

Once the employer is put on notice of the employee’s request for reasonable accommodation, it should engage in what is known as the “interactive process.” The “interactive process” refers to the communication between employer and employee concerning the employee’s known limitations and the accommodations being requested. Employers are advised to promptly respond to accommodation requests and document each stage of the interactive process. If the accommodation does not pose an undue hardship to the employer’s business operations, the employer is generally required to provide such accommodation. If the employer determines that an undue hardship will be imposed should they grant the accommodation, it should document such conversation, and compile evidence to support their conclusion.

Are There Other Requirements Imposed by the Final Rule?

The Final Rule provides that unnecessary delay in providing reasonable accommodation may amount to a denial of the accommodation in violation of the PWFA. Furthermore, the Final Rule also imposes a limitation on monetary damages for violations of the reasonable accommodation provision of the PWFA if an employer has made a “good-faith effort” to engage in the interactive process and provide reasonable accommodation.

If you have any questions regarding how the EEOC’s PWFA Final Rule will impact you and your business, please contact attorney David R. Ross, Esq., Shareholder, at (518) 312-0167 or via email at dross@oalaw.com. Law Clerk Colin D. Green contributed to this article.