Congress passed the Pregnant Workers Fairness Act (PWFA) on June 27, 2023. The law requires covered employers—which, in the private sector, includes those with 15 or more employees—to provide a reasonable accommodation to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship. While other federal laws, notably the Pregnancy Discrimination Act, already prohibit discrimination against employees or applicants on the basis of pregnancy, childbirth or related medical conditions, the PWFA imposes an obligation on covered employers to accommodate employees with such conditions despite their transitory nature and whether or not they rise to the level of a disability under the Americans with Disabilities Act (ADA).

The text of the PWFA left unanswered many questions regarding employers’ obligations. The Equal Employment Opportunity Commission (EEOC) tried to fill these gaps by publishing a Proposed Rule interpreting the PWFA on August 11, 2023, to which the agency invited public comment for a 60-day period. On April 15, 2024, after reviewing approximately 100,000 public comments, the EEOC issued its final rule and interpretative guidance with respect to the PWFA. The Final Rule will become effective on June 18, 2024, but the PWFA already is in effect and the EEOC is already accepting charges alleging non-compliance with the PWFA, so employers are urged to update their policies and practices as soon as possible.

Key takeaways from the 408-page Final Rule include the following:

Who is covered? Employers covered by Title VII of the Civil Rights Act of 1964 also are covered employers for purposes of the PWFA. The process of filing a charge and the remedies available to aggrieved employees track Title VII as well; however, borrowing a concept from the ADA, damages may be limited if the PWFA claim involves the provision (or non-provision) of a reasonable accommodation and the employer makes a good faith effort to meet the need for reasonable accommodation.

What are covered limitations? The PWFA Final Rule takes a broad view of “pregnancy, childbirth, or related medical conditions.” The Rule covers lactation, miscarriage, stillbirth and “having or choosing not to have an abortion” as medical conditions related to pregnancy or childbirth.

What are employers required to do under the PWFA? Employers must reasonably accommodate employees’ known limitations, meaning those limitations that the employee or the employee’s representative has communicated to the employer. Requesting an accommodation requires two steps: First, the employee must identify their limitation. Second, the employee must communicate that they need an adjustment or change at work because of their limitation. Employers are not required to, and should not, speculate about potential limitations imposed by pregnancy, childbirth or related medical conditions. Furthermore, only covered employees are entitled to reasonable accommodation. Non-pregnant/non-birthing partners and family members are not entitled to accommodation under the PWFA, but the non-retaliation provisions of the PWFA may apply to non-pregnant/non-birthing persons who oppose unlawful practices.

What does PWFA reasonable accommodation look like? As under the ADA, the PWFA requires an interactive dialogue to identify reasonable accommodation(s). These may include providing more frequent breaks; permitting sitting/standing; changing work schedules; allowing part-time, reduced hours, or telework; granting a leave of absence; adjusting parking assignments; providing light duty; making the work environment more accessible; job restructuring; temporarily suspending one or more essential functions of the job; acquiring or modifying equipment, uniforms, or devices; or adjusting or modifying examinations or policies. Unnecessary delays in making reasonable accommodation or conditioning accommodation on unnecessary medical documentation may result in a violation of the PWFA.

An accommodation is not reasonable if it imposes an undue hardship, which definition is imported from the ADA and means significant difficulty or expense for the operation of the employer. Although there are no bright-line tests, the Final Rule suggests that some simple modifications will almost always be reasonable: allowing an employee to carry or keep water nearby; permitting additional restroom breaks; allowing sitting and standing as needed; and granting additional breaks to eat and drink as needed. Conversely, the PWFA prohibits an employer from requiring a qualified employee with a known limitation to take paid or unpaid leave if another effective reasonable accommodation exists, absent undue hardship.

How does the PWFA differ from the ADA? Limitations related to pregnancy, childbirth, and related conditions differ in kind, nature, and duration from disabilities under the ADA. Although some limitations may also constitute ADA disabilities, PWFA limitations additionally include impediments that are modest, minor, or episodic; needs or problems related to maintaining the employee’s health or the health of a pregnancy; and seeking health care related to pregnancy, childbirth, or a related medical condition.

Furthermore, unlike the ADA which only covers employees who can perform the essential functions of their job with or without reasonable accommodation, the PWFA includes these employees as well as employees who cannot perform one or more essential functions of their job, with or without reasonable accommodation, as long as their inability to perform such function(s) is temporary (lasting for a limited time, not permanent) and they should be able to perform them again in the near future (generally within the next 40 weeks), and their inability to perform the essential function can be reasonably accommodated. For some positions, this may mean that one or more essential functions must be temporarily suspended or reassigned, a departure from the ADA analysis. Whether temporary suspension of an essential function(s) causes an undue hardship considers how long the employee will be unable to perform the essential function(s); whether there is other work for the employee to do; the nature of the essential function, including its frequency; availability of other employees or third parties to perform the essential function(s) in question; past practice involving similarly situated employees/essential functions; and the impact of postponing or leaving the essential function unperformed.

Can employers request documentation of PWFA limitations? Yes, but the documentation must be limited to that which is required for the employer to determine whether the applicant or employee has a physical or mental condition related to, affected by or arising out of pregnancy, childbirth, or related medical conditions and needs a change or adjustment at work due to such limitation. The Final Rule explains that it is not reasonable to seek supporting documentation when the known limitation and need for reasonable accommodation is obvious and the employee confirms the obvious limitation and need for reasonable accommodation through self-attestation. Documentation would also be unreasonable if the requested accommodation is one plainly provided by the employer’s existing policies or practices (e.g., unlimited flex time or telecommuting), or if the request relates to lactation following childbirth. Provisions of the ADA regarding confidentiality of medical information also apply to information obtained under the PWFA.

How does the PWFA interact with other laws? The PWFA does not replace or supersede federal, state, or local laws providing greater protection related to pregnancy, childbirth, or related medical conditions, nor does it supersede federal or state laws granting job-protected leaves of absence. An interesting and perplexing issue is the PWFA’s rule of construction, which states that the PWFA is subject to the applicability to religious employment. In other words, certain religious corporations, associations, educational institution, or societies who employ individuals of a particular religion to perform work connected with the carrying on by such entity of its religious activities may be exempt from some of the obligations of the PWFA, which the EEOC will consider on a case-by-case basis. This intersectionality is likely to be fertile ground for legislation as the EEOC retained controversial language from the Proposed Rule to which many employers objected related to abortion-related medical treatment.