In April, the EEOC issued the much awaited regulations interpreting the Pregnant Worker’s Fairness Act, passed by Congress last summer.  The PWFA went into effect on June 27, 2023 and the regulations are effective June 18, 2024.  The purpose of the PWFA was to fill the void in federal employment law pertaining to accommodations for pregnancy, childbirth, and related medical conditions. While Title VII protected pregnant workers against discrimination and the ADA required accommodation to disabled individuals, prior to the PWFA, there was no federal law that mandated accommodation for limitations arising out of pregnancy, childbirth and related medical conditions. While FMLA leave was available to pregnant workers, one purpose of the PWFA was to force employers to provide accommodation that would allow a pregnant employee to continue working rather than take leave, allowing the worker to continue earning wages and making more leave available for post-partum recovery and bonding.

In addition to prohibiting discrimination against employees and applicants who need reasonable accommodation for known limitations related to pregnancy, childbirth or related medical conditions, the PWFA mandates that all U.S. private sector employers and state or local governments with 15 or more employees provide reasonable accommodation to qualified employees and applicants with known limitations that are arising out of or affected by pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer undue hardship, and prohibits an employer from requiring an employee or applicant to accept an accommodation that is not a reasonable accommodation arrived at through the interactive process.

This sounds much like the accommodation requirement mandated by the Americans with Disabilities Act. However, employers should be aware that their usual processes for determining whether and, if so, how to accommodate a disabled applicant or employee should NOT be used when analyzing whether and how to accommodate an employee with known limitations arising out of or affected by pregnancy, childbirth, or related medical conditions. The following provides ten steps employers should consider when analyzing an accommodation under the PWFA and the newly issued regulations.

Step 1 – Is there a “known limitation”?  

The employer’s duty to accommodate under the PWFA is triggered when the employee, applicant or their representative has communicated the limitation and requested an adjustment or change in their working conditions due to this limitation. The request must be made to a manager, supervisor, someone with supervisory authority, someone who directs the employee’s tasks, a human resources representative, or anyone identified in the employer’s policy on requesting accommodation. In other words, the limitation must be made known to the employer by the employee, applicant or their representative orally, in writing or by another effective means. 

The PWFA defines limitation as a physical or mental condition that is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Unlike the ADA, the limitation does not have to be substantial. It can be modest, minor or episodic in nature. The limitation can be that the individual affected by pregnancy, childbirth, or related medical conditions has a need or problem related to their health or that of the pregnancy, such as not being exposed to certain conditions, an inability to engage in certain tasks, or a requirement that the individual take certain actions for their health or the health of their pregnancy. In addition, the limitation could be the need to attend healthcare appointments related to pregnancy, childbirth or a related medical condition.

There are no magic words that must be used to request an accommodation, so employers should ensure that managers, supervisors, HR staff members, and anyone else identified in the employer’s accommodation policies are aware that once they “know” of an employee or applicant’s “limitation,” there is a duty to engage in the interactive process.

Step 2 – Is the known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions of the employee or applicant themselves?

There must be a connection between the known limitation and the employee or applicant’s pregnancy, childbirth or related medical conditions. However, there is no requirement that the pregnancy, childbirth, or related medical condition be the sole, original or substantial reason for the physical or mental condition. This is because pregnancy and childbirth not only create new physical and mental conditions but can also exacerbate preexisting conditions. Thus, the existence of the condition separate and apart from pregnancy or childbirth is not disqualifying.

The regulations have clarified that the limitation must be of the specific employee or applicant in question and not their partner, spouse, or family member.

The PWFA uses the Title VII definition of “pregnancy, childbirth, or related medical conditions.” The regulations provide the following non-exhaustive list of covered conditions:

Pregnancy and Childbirth:

• current pregnancy;
• past pregnancy;
• potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception);
• labor;
• childbirth (including vaginal and cesarean delivery).

Related medical conditions:

• termination of pregnancy, including via miscarriage, stillbirth, or abortion;
• ectopic pregnancy;
• preterm labor;
• pelvic prolapse;
• nerve injuries;
• cesarean or perineal wound infection;
• maternal cardiometabolic disease;
• gestational diabetes;
• preeclampsia;
• HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome;
• hyperemesis gravidarum;
• anemia;
• endometriosis;
• sciatica;
• lumbar lordosis;
• carpal tunnel syndrome;
• chronic migraines;
• dehydration;
• hemorrhoids;
• nausea or vomiting;
• edema of the legs, ankles, feet, or fingers;
• high blood pressure;
• infection;
• antenatal (during pregnancy) anxiety, depression, or psychosis;
• postpartum depression, anxiety, or psychosis;
• frequent urination;
• incontinence;
• loss of balance;
• vision changes;
• varicose veins;
• changes in hormone levels;
• vaginal bleeding;
• menstruation;
• lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections.

Step 3 – Is the employee or applicant “qualified”?

Unlike the ADA there are two ways an employee can be qualified under the PWFA. First, as under the ADA, the individual can perform the essential functions of the position with or without a reasonable accommodation. For example, a pregnant employee is unable to stand for a full shift but is able to perform the essential functions of their position if they are provided with a stool on which to sit.

Different from the ADA, however, is the second way an employee or applicant can be qualified. That is, they cannot perform the essential functions currently, but:

• the inability is only “temporary,” meaning not permanent, and may extend beyond “in the near future,”
• they can perform the essential functions “in the near future,” and
• the inability to perform the essential functions can be reasonably accommodated.

With regard to an employee or applicant who is pregnant, it is presumed that they could perform the essential functions in the near future because they could perform them generally within 40 weeks of its suspension.

Step 4 – Is the request for reasonable accommodation a “predictable assessment”?

Prior to engaging in an assessment of whether the employer can provide a reasonable accommodation that does not impose an undue hardship, the employer should first consider whether the request is one of the four “predictable assessments” the PWFA provides are reasonable accommodations that will not, in virtually all cases, impose an undue hardship when they are requested as an accommodation by a pregnant employee:

• Allowing an employee to carry or keep water near and drink, as needed;
• Allowing an employee to take additional restroom breaks, as needed;
• Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
• Allowing an employee to take breaks to eat and drink, as needed.

Thus, in nearly all instances, the employer should provide these accommodations when they are arising out of pregnancy, childbirth, or related medical conditions.

Step 5 –  Does the employer need documentation from a healthcare provider to support the request for reasonable accommodation?

An employer seeking documentation from an employee or applicant supporting their request for accommodation under the PWFA is limited to making the request when it is reasonable under the circumstances and requesting only the minimum documentation needed for the employer to:

• Confirm the employee or applicant’s limitation(s), that is a physical or mental condition;
• Confirm that the limitation(s) is related to, affected by, or arising out of pregnancy, childbirth or related medical conditions; and
• Describe the adjustment or change at work needed because of the limitation(s) and the expected duration.

The PWFA provides that in many instances, supporting documentation will not be needed such as: when the limitation is obvious and the employee provides self-confirmation; when the employer already has sufficient information from previously submitted information; when the employee is requesting one of the predictable assessments; the accommodation is related to a time or place to pump at work; or when the accommodation is available to employees without known limitations pursuant to an employer’s policy or practice.

The employer requesting documentation may not require that it come in any particular form and given the limitations on the requested documentation, employers should not use their existing ADA accommodation forms for this purpose. In addition, the employer may not require the employee be examined by the employer’s selection of a health care provider. Documentation must be kept confidential and separate and apart from the employee’s personnel file.

In addition, the EEOC reminds employers of the potential difficulties for workers to obtain information from a provider early in pregnancy and accordingly that there may be substantial delay in obtaining the documentation. The employer must provide the employee with sufficient time to obtain and provide the supporting documentation sought or they risk liability arising from failing to provide an accommodation. 

Step 6 – Can the employer provide an interim accommodation?

The PWFA regulations provide that an unnecessary delay in providing reasonable accommodation to the known limitations related to pregnancy, childbirth or related medical conditions of a qualified employee may result in a violation of the PWFA even if the employer eventually provides the reasonable accommodation.  In addition, accommodations relating to pregnancy, childbirth or related medical conditions are often needed immediately. However providing the accommodations immediately may not be possible due to delays associated with receiving a piece of equipment, awaiting information from a healthcare provider, or the employer’s decision in response to the accommodation request.

While not required, in an effort to avoid liability arising out of any such delay, employers should consider whether an interim reasonable accommodation, other than leave, is feasible. Consistent with the purpose of the PWFA, requiring an employee to take leave as an interim accommodation is strongly discouraged and should only be provided upon the employee’s request.

Step 7 – Identify reasonable accommodation(s) the employer can provide for the known limitation and engage in the interactive process with the employee regarding the proposed reasonable accommodation(s).

The PWFA defines a reasonable accommodation as a:

• Modification or adjustment to:
  • the job application process,
  • the manner or circumstances under which the position is customarily performed, or
  • enable the employee or applicant to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without known limitations; or

• Temporary suspension of essential functions of the position.

A non-exhaustive list of examples of reasonable accommodation included in the regulations are:

• Making existing facilities used by employees readily accessible to and usable by employees with known limitations;

• Job restructuring; part-time or modified work schedules; reassignment to a vacant position; breaks for the use of the restroom; drinking, eating, and/or resting; acquisition or modification of equipment, uniforms, or devices, including devices that assist with lifting or carrying for jobs that involve lifting or carrying; modifying the work environment; providing seating for jobs that require standing, or allowing standing for jobs that require sitting; appropriate adjustment or modifications of examinations or policies; permitting the use of paid leave (whether accrued, as part of a short-term disability program, or any other employer benefit) or providing unpaid leave for reasons including, but not limited to, recovery from childbirth, miscarriage, stillbirth, or medical conditions related to pregnancy or childbirth, or to attend health care appointments or receive health care treatment related to pregnancy, childbirth, or related medical conditions; placement in the covered entity’s light or modified duty program or assignment to light duty or modified work; telework, remote work, or change of work site; adjustments to allow an employee to work without increased pain or increased risk to the employee’s health or the health of the pregnancy; temporarily suspending one or more essential functions of the position; providing a reserved parking space if the employee is otherwise entitled to use employer-provided parking; and other similar accommodations for employees with known limitations under the PWFA;

• Temporary suspension of one or more essential functions of the position in question if the employee or applicant with the known limitation is unable to perform one or more essential functions with or without reasonable accommodation;

• For lactation – breaks; a space for lactation ensuring that the area for lactation is in reasonable proximity to the employee’s usual work area; that it is a place other than a bathroom; that it is shielded from view and free from intrusion; that it is regularly cleaned; that it has electricity, appropriate seating, and a surface sufficient to place a breast pump; and that it is in reasonable proximity to a sink, running water, and a refrigerator for storing milk; accommodations related to nursing during work hours (where the regular location of the employee’s workplace makes nursing during work hours a possibility because the child is in close proximity); and other related modifications as required under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) though accommodation under the PWFA may extend beyond the one-year period covered by the PUMP Act; and

• Leave – as a last resort or upon request of the employee, including the use of paid leave (accrued, short term disability or other employer provided benefit) or unpaid leave.

Employers should also consult the Job Accommodation Network’s online resource for information on potential accommodations.

The PWFA prohibits employers from requiring an employee use an accommodation that was not identified through an interactive process. So after identifying a reasonable accommodation(s), the employer should then consult with the employee or applicant to determine whether the identified reasonable accommodations would be effective to enable the employee or applicant to perform the essential functions of the position. While this process should include considering the preference of the employee regarding the accommodation, the employer may select and implement the reasonable accommodation that is most appropriate for both the employee or applicant and the employer.

Step 8 – Assess whether the identified reasonable accommodation poses an undue hardship.

Under PWFA, an employer is not required to provide a reasonable accommodation that poses a significant difficulty or expense when considered in light of the following factors:

(i) The nature and net cost of the accommodation needed under the PWFA;

(ii) The overall financial resources of the facility or facilities at which the employee or applicant works, the number of persons employed at such facility, and the effect on expenses and resources;

(iii) The overall financial resources of the employer, its overall size with respect to the number of employees, and the number, type, and location of its facilities;

(iv) The employer’s type of operation, including the composition, structure, and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and

(v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

To determine whether the temporary suspension of an essential function of the employee’s position constitutes an undue hardship, the regulations provide the following additional considerations:

(i) The length of time that the employee will be unable to perform the essential function(s);

(ii) Whether there is work for the employee to accomplish;

(iii) The nature and frequency of the essential function;

(iv) Whether the employer has provided a temporary suspension of the essential functions to other employees in similar positions who are unable to perform an essential function (Note:  this may require providing light duty as an accommodation when light duty is provided to employees with on the job injuries);

(v) Whether other employees, temps or third parties can perform the essential function; and

(vi) Whether the essential function can be postponed or remain unperformed for any length of time and if so for how long.

The assessment of undue hardship should be done as part of engaging in the interactive process with the employee. 

Step 9 – Only implement leave as an accommodation if the employee requested it or it is the accommodation of last resort.

In order for leave to be provided as a reasonable accommodation under the PWFA, it must either be requested or selected by the employee or applicant, or the only reasonable accommodation that does not cause an undue hardship. 

In this situation, an employer should remember that FMLA leave or any applicable state family medical leave may be provided concurrently and provide the employee with applicable paperwork to communicate the employee’s eligibility and if eligible, any information needed to designate the leave as FMLA (federal or state) covered. 

If the employee is not covered by FMLA (federal or state) or fails to timely provide any requested paperwork needed to designate the leave as FMLA covered, then the employer should request documentation permitted under PWFA as described in Step 5.

Step 10 – Are there any other laws that are more protective that require a different result?

Finally, employers should remember that there are other federal, state and local laws that mandate accommodations and other protection of employees and applicants based on disabilities, medical conditions, pregnancy, childbirth, or other related medical conditions. These laws must be read in accordance with the PWFA so that the law that provides the greatest benefit to the employee or applicant is applied. Accordingly, before the employer finalizes its accommodation decision, the employer should consider whether a state or local law would provide a more beneficial outcome to the employee or applicant. This 10 step process should assist employers in analyzing PWFA accommodation requests and implementing an accommodation that complies with the law and its new regulations. However, as these regulations are currently being challenged in litigation, employers are encouraged to stay abreast of any changes and consult with counsel where needed.