The U.S. Equal Employment Opportunity Commission (EEOC) recently finalized a rule regarding implementation of the Pregnant Workers Fairness Act (PWFA). The PWFA, which went into effect on June 27, 2023, requires employers with 15 or more employees to provide reasonable accommodations to employees and applicants with limitations related to or arising out of pregnancy, childbirth, or related medical conditions. This mandate led to confusion about the scope of the PWFA’s protections, which the EEOC’s new rule is intended to address. The new rule was formally published on April 19 and will take effect 60 days later.

The PWFA requires covered employers to alter job duties or provide time off for “limitations related to … pregnancy, childbirth, or related medical conditions” unless the accommodation would result in an undue hardship for the employer. The EEOC’s new rule further explains the scope of these protections, and states employers must make accommodations for contraception, menstruation, endometriosis, infertility and fertility treatments, abortions, miscarriages and lactation, along with potential, current and past pregnancies. The list of potential accommodations includes part time work, remote work, paid or unpaid leave, temporary relief from certain duties, additional breaks, sitting or standing, limits on lifting and modified equipment, reserved parking, light duty, job restructuring and adjusting policies.

EEOC Offers Expansive Interpretation of PWFA

This final rule broadly interprets the protections included in the law approved by Congress. The liberal interpretation of the Act includes the following provisions:

  • The EEOC rule explains that the phrase “related medical conditions” can include minor or episodic physical and mental conditions arising from pregnancy and pre-existing conditions exacerbated by pregnancy or birth. The rule does not include a level of severity required for qualification.
  • The rule includes four “predictable” accommodations which employers should approve nearly every time because they do not impose undue hardship. Those accommodations include allowing employees to:
    • Carry or keep water and drink nearby
    • Take needed restroom breaks
    • Sit or stand as needed
    • Eat and drink as needed
  • The rule requires employers to make accommodations for any employee who is temporarily unable to perform an essential function because of pregnancy or a related condition if it is reasonable to believe the employee could return to perform that function “in the near future.” The rule leaves interpretation of “in the near future” in the case of other pregnancy-related conditions, as well as childbirth, to be determined on a case-by-case basis, but stipulates it cannot be indefinite. This is a notable difference from the framework under the Americans with Disabilities Act that most employers are accustomed to, where an inability to perform essential functions of a job (with or without reasonable accommodation) is disqualifying.
  • If the employer grants a request for temporary accommodation for 40 weeks during a pregnancy, those weeks do not count for a subsequent request related to childbirth or another medical condition. The clock starts again.
  • Employers must provide a quick and simple process for employees to request an accommodation. This can be similar to the interactive process required by the Americans with Disabilities Act. The verbal or written request can come from the employee or a representative of the employee and only needs to identify their need for an accommodation.
  • Employers cannot require an employee to be examined by an independent health care provider, can only require reasonable medical documentation to determine if the employee has a qualifying condition, and, in many cases, should accept a self-attestation of the employee’s condition and need for accommodations.
  • Reasonable documentation is considered that which confirms the condition, attests it is related to pregnancy, and states a job adjustment is needed. Employers may ask for a timeline on the accommodation.
  • Several conditions are exempt from required documentation. They include when the need for reasonable accommodation is obvious or the employer already has sufficient information on the condition; when the request is for one of the minor accommodations the EEOC has stipulated should be granted in nearly all requests (water, breaks, sitting/standing, eating/drinking); and when the accommodation is lactation-related, unless it is a request for full-time remote work.

Finally, the rule prohibits employers from:

  • Failing to provide reasonable accommodations unless it will create an undue hardship
  • Requiring an employee to accept accommodations that aren’t negotiated through the interactive process
  • Denying a job or promotion based on the need for a reasonable accommodation
  • Requiring leave when another reasonable accommodation would allow the employee to keep working
  • Punishing or coercing an employee, or their representative, for requesting a reasonable accommodation

Employers should familiarize themselves with the rule and guidance and make policy changes as needed. Additionally, employers should ensure that all human resources employees and others who have supervisory authority are aware of the employer obligations under the PWFA. If you have questions or concerns, please reach out to Harris Beach’s Labor and Employment attorneys. Please contact attorney Roy R. Galewski at (585) 419-8661 and; attorney Daniel J. Moore at (585) 419-8626 and; attorney Daniel J. Palermo at (585) 419-8946 and; or the Harris Beach attorney with whom you most frequently work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.