Supporting Pregnant Employees: Understanding the Pregnant Workers Fairness Act

pregnant worker

On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) went into effect. The PWFA requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. Employers may not be required to do so if such accommodation would cause the employer an “undue hardship.”

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (the “EEOC”) issued its final regulation to enforce the PWFA. The final regulation goes into effect on June 18, 2024.

The EEOC’s final PWFA regulation provides that a “covered entity” means public or private employers with 15 or more employees, unions, employment agencies and the Federal Government.

The PWFA provides two ways an employee may be “qualified.” First, an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position is qualified. Second, the PWFA allows an employees or applicants to be qualified even if they cannot perform one or more essential functions of the job if (1) the inability to perform the essential function(s) is “temporary”; (2) they could perform the essential function(s) “in the near future”; and (3) the inability to perform the essential function(s) can be reasonably accommodated.

The EEOC gives the phrase “pregnancy, childbirth, or related medical conditions” the same meaning under the PWFA as under Title VII, the Civil Rights Act of 1964. Some examples of “related medical conditions” provided for by the regulation include: lactation, miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, postpartum depression, and many more.

To request a reasonable accommodation, an employee must: (1) identify the limitation, and (2) communicate that the employee needs an adjustment or change at work due to the limitation. This communication does not require any specific language and should be a simple process.

Employers must only request documentation from a health care provider if it is a reasonable request under the circumstances. A request for documentation from a medical provider will not be reasonable if: (1) the limitation and need for adjustment are obvious; (2) the employer already knows about the limitation and need for adjustment; (3) the employee is currently pregnant and needs breaks for the bathroom or to eat or drink, needs to stand, etc.; (4) the employee is lactating and needs modifications to pump at work or nurse during work hours; or (5) the employer would not ask an employee for documentation in that situation normally.

Importantly, the PWFA does not limit the rights of individuals affected by pregnancy, childbirth, or related medical conditions under any Federal, State, or local law that provides greater or equal protection.

If you are an employee or employer with questions regarding your rights and/or responsibilities under the PWFA, please reach out to an Upton & Hatfield attorney today.