The U.S. Equal Employment Opportunity Commission (EEOC) final regulations for implementing the federal Pregnant Workers Fairness Act (PWFA).
The PWFA, which went into effect in 2023, requires all employers, with 15/more employees, to provide reasonable accommodations for known limitations related to pregnancy, childbirth or related medical conditions unless the accommodation would cause the employer an undue hardship.
NOTE: This federal law is much closer to California law California’s Fair Employment and Housing Act (FEHA), which requires covered employers with five/more employees to provide reasonable accommodation for the “known limitation of a qualified employee related to pregnancy, childbirth, or related medical conditions”.
Under the new rule, a “known limitation” is a physical or mental condition related to, affected by or arising out of pregnancy, childbirth or related medical conditions that the employee has communicated to the employer. The limitation doesn’t need to qualify as a disability under the ADA.
The rule states that a physical or mental condition limitation may be:
- An impediment or problem that may be modest, minor or episodic.
- A need or problem related to maintaining their health or the health of a pregnancy.
- Seeking health care related to pregnancy, childbirth or a related medical condition.
Updated guidance under the PWFA provides examples of possible reasonable accommodations, including:
- The ability to sit or drink water.
- Closer parking.
- Flexible hours.
- Appropriately sized uniforms and safety apparel.
- Additional break time to use the bathroom, eat and rest.
- Leave to recover from childbirth.
- Reassignment from activities that are strenuous or involve exposure to compounds that are not safe for pregnancy.
Also employers may be required to reasonably accommodate suspending essential functions for up to 40 weeks in certain situations unless doing so would impose an undue hardship. Additionally, an employee remains qualified if:
- Any inability to perform an essential function is for a “temporary period;”
- The essential function could be performed “in the near future;” and
- The inability to perform the essential function can be reasonably accommodated (absent undue hardship).
If the employer is asserting that the inability to perform essential functions can’t be reasonably accommodated, and would cause “undue hardship”, then the employer, must consider several factors in making that determination, including:
- The length of time the employee will be unable to perform the essential function(s).
- Whether there is work for the employee to accomplish.
- The nature and frequency of the essential function(s).
- Employer’s history of suspending essential functions for other employees.
- Whether other employees or third parties can perform the essential function(s).
- Whether the essential function(s) can be postponed or remain unperformed for any length of time.
NOTE: The PWFA does not replace federal, state or local laws that are more protective of employees impacted by pregnancy, childbirth or related medical conditions.
