An employee’s ability to seek a temporary suspension of an essential function under the PWFA is in stark contrast to the approach under the ADA.

On April 19, 2024, the long-awaited final regulations implementing the Pregnant Workers Fairness Act (PWFA) were published, providing important compliance guidance to employers. The PWFA regulations final rule will go into effect on June 18, 2024.

The PWFA, which went into effect on June 27, 2023, requires a covered employer (including private employers with 15 or more employees) to provide reasonable accommodations 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.”

This Alert discusses the most significant provisions of the PWFA’s final rule, including key differences from the Americans with Disabilities Act (ADA).

Wide-Reaching Definition of a “Qualified Employee”

Similar to the ADA, the PWFA protects “qualified employees.” However, the PWFA expands what it means to be a qualified employee.

The PWFA provides two avenues through which an employee or applicant is considered a qualified employee. First, a “qualified employee” includes individuals who are able to perform the essential functions of their role with or without a reasonable accommodation. In addition, the PWFA expanded the definition of a qualified employee to include individuals who are (1) unable to perform an essential function of their role for a temporary period of time; (2) able to perform that essential function in the near future; and (3) able to be reasonably accommodated by the employer for their inability to perform essential functions. The statutory language of the PWFA did not specifically define “temporary” or “in the near future.”

The final rule’s definition of these terms demonstrates the expansive reach of the PWFA. The final rule provides that “temporary” means that the need to suspend one or more essential functions is “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” The final rule further provides that where the request to temporarily suspend an essential function is due to a current pregnancy, “in the near future” means “generally forty weeks from the start of the temporary suspension of an essential function.” Where the need to temporarily suspend an essential function is related to childbirth or a related medical condition, the final rule declines to set a specific period of time for “in the near future,” instead noting only that an indefinite period of time does not meet the standard and that an assessment will vary on a case-by-case basis. Importantly, the final rule contemplates that because an employee may need the temporary suspension of an essential function both during a current pregnancy as well as later, upon returning to work, the determination of whether an employee is able to perform that essential function in the near future is separately made when the employee asks for each accommodation.

An employee’s ability to seek a temporary suspension of an essential function under the PWFA is in stark contrast to the approach under the ADA, which provides that an individual with a disability who is unable to perform the essential functions of their position, with or without an accommodation, is not qualified for the protections of the ADA.

The PWFA Covers Far More Than a Current Pregnancy

The protections under the final rule apply with respect to a qualified employee’s known limitations (both physical and mental conditions) related to, affected by or arising out of pregnancy, childbirth or related medical conditions.

The final rule sets forth a nonexhaustive list of covered events to which the protections may apply, including but not limited to the following:

• Current, past, potential and intended pregnancy
• Infertility, fertility treatment and the use of contraception
• Termination of pregnancy, including via miscarriage, stillbirth, abortion and ectopic pregnancy
• Gestational diabetes, preeclampsia and hyperemesis gravidarum
• Nausea, vomiting, high blood pressure, post-partum depression or anxiety
• Lactation and conditions related to lactation
• Menstruation

Importantly, the final rule emphasizes that a covered limitation triggering the request for a reasonable accommodation may be “modest, minor and/or episodic” and may be that an employee affected by pregnancy, childbirth or related medical condition has a need or a problem relating to maintaining their own health or the health of the pregnancy and includes when an employee is seeking related healthcare. The final rule reinforces that a physical or mental condition can be a covered “limitation,” regardless of whether or not it constitutes a disability under the ADA.

Requesting an Accommodation Under the PWFA Should Not Be Complicated or Difficult

An employer is only required to accommodate “known limitations” under the PWFA. However, the process by which an employee, or the employee’s representative (which includes family members, friends, union representatives, healthcare providers or other representatives), identifies the limitation and the need for the accommodation should be straightforward.

The communication may be oral, in writing or through another effective means and no specific words or form may be required. This means that while an employer may expect an employee to confirm a request in writing, an employer may not ignore a request that is made verbally or through a different avenue. The Equal Employment Opportunity Commission (EEOC) emphasizes that employees must be able to make accommodation requests, particularly for straightforward accommodations such as bathroom breaks and access to food and drink, by communicating with the employer representative with whom they would normally consult on work-related questions. This means it is particularly important for employers to educate managers and supervisors on the protections of the PWFA and how to respond to employee requests for accommodation.

Employers and Employees Must Engage in the Interactive Process to Identify Reasonable Accommodations

Similar to the ADA, the PWFA requires employers and employees to engage in an interactive process to identify reasonable accommodations.

The final rule sets forth a nonexhaustive list of what those potential reasonable accommodations may look like:

• Frequent breaks
• Sitting/standing
• Schedule changes, including part-time work and paid or unpaid leave
• Remote work
• Providing reserved parking
• Light duty assignments
• Making existing facilities accessible or modifying the work environment (e.g., moving an employee’s work space or providing protective equipment)
• Job restructuring
• Temporarily suspending one or more essential job functions
• Acquiring or modifying equipment, uniforms or devices
• Adjusting or modifying examinations or policies

As under the ADA, an employer is not required to provide an accommodation under the PWFA that imposes an undue hardship, i.e., which would require the employer to suffer “significant difficulty or expense in, or resulting from, the provision of the accommodation.”

The final rule directs employers to consider the following in making the determination of undue hardship:

1. The nature and net cost of the accommodation;
2. The overall financial resources of the facility/facilities involved, the number of persons employed at the facility and the impact on expenses and resources;
3. The overall financial resources of the covered entity, including the overall size of the business;
4. The type of operation or operations; and
5. The impact of the accommodation on the facility’s operation, including the impact on other employees’ ability to perform their duties and the impact on the facility’s ability to conduct business.

Where an employee’s accommodation request involves the temporary suspension of an essential function(s), the final rule directs employers to take into account additional factors, where relevant:

1. The length of time the employee will be unable to perform essential functions;
2. Whether there is other work for the employee to accomplish;
3. The nature and frequency of the essential functions;
4. Whether other employees have benefitted from the suspension of essential functions in the past;
5. Whether other employees are able to perform the essential function; and
6. Whether the essential function can be suspended altogether and for how long.

The final rule also highlights a select group of “predictable assessments” and provides specific guidance on how employers should respond to these accommodation requests. Employers should take note that the EEOC presumes that in almost all cases the following modifications are reasonable, will not impose an undue hardship and should be provided to a pregnant employee without delay:

• Allowing an employee to carry or keep water near and drink as needed;
• Allowing an employee 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.

The final rule also reminds employers that they must provide partial accommodations where reasonable and where providing the full, requested accommodation would present an undue hardship (e.g., six weeks of leave rather than eight weeks of leave). Both paid and unpaid leaves of absence are examples of possible reasonable accommodations. However, the final rule emphasizes that employers may not require an employee to take either type of leave if the employer is able to provide another reasonable accommodation without undue hardship.

Additionally, the final rule emphasizes the “best practice” to provide interim accommodations in cases of sudden-onset limitations or emergencies. For example, while waiting for equipment to arrive, an employer may develop a temporary solution to meet the employee’s needs or limitations.

In Some Situations, an Employee May Self-Confirm Their Limitation and Need for an Accommodation

The EEOC expects that employers will typically accommodate employees based on simple, brief communications determining the appropriate accommodations. Indeed, an employer is not required to seek supporting documentation and may only do so when it is reasonable under the circumstances to determine whether the employee has a limitation and needs an adjustment or change in work due to the limitation.

The final rule identifies five examples of when it is not reasonable for employers to ask for documentation:

• When the limitation and the needed accommodation is obvious and the employee provides a self-confirmation;
• When the employer already has sufficient information to determine the limitation and need for adjustment or change in work due to the limitation;
• In connection with “predictable assessments,” and with an employee’s self-confirmation;
• In connection with lactation and nursing accommodations, and with the employee’s self-confirmation; and
• Where the accommodation is available to others without known limitations pursuant to employer policy or practice.

In those instances where an employer may seek reasonable documentation, it is limited to the minimum amount sufficient to confirm the physical or mental condition, confirm that the physical or mental condition is related to, affected by or arising out of pregnancy, childbirth or related medical condition and describe the needed adjustment or change in work. Notably, an employer may not require a medical diagnosis, may not require the supporting documentation be submitted on a specific form, may not require that the healthcare provider submitting the documentation actually be treating the employee for the limitation and may not require that the employee be examined by the healthcare provider selected by the employer.

The confidentiality requirements of the ADA apply to information gathered by an employer under the PWFA.

The PWFA Contains Obligations Beyond Reasonable Accommodations

In addition to the requirement to provide reasonable accommodations, the final rule reiterates that a covered entity is prohibited from:

• Requiring a qualified employee to accept an accommodation other than any reasonable accommodation derived through the interactive process;
• Denying employment opportunities based on the need to make reasonable accommodations to the known limitations related to pregnancy, childbirth or a related medical condition of a qualified employee;
• Requiring a qualified employee to take paid or unpaid leave where another reasonable accommodation is available and can be provided to address the known limitations related to pregnancy, childbirth or related medical condition; and
• Taking adverse action with respect to the terms, conditions or privileges of employment against a qualified individual who request or using such reasonable accommodation.

Employer Next Steps

• Employers should circulate to employees an updated accommodations policy that goes beyond accommodations for disabilities and religion. The policy should specifically provide for accommodations for known limitations arising out of, affected by or related to pregnancy, childbirth and related medical conditions, even when the employee is not disabled. The policy should also specifically inform employees on how to request accommodations, that accommodation requests are subject to the interactive process and will not be available if they constitute an undue hardship.
• Employers should educate managers and supervisors on obligations under the PWFA―in particular, how they should respond to employee accommodation requests and their role in the interactive process. Although managers and supervisors may have a preference as to what type of accommodation to provide, the PWFA is clear that an employer may not require an employee to take leave, for example, in lieu of providing another reasonable accommodation.
• In evaluating employee requests, employers must remember to consider other federal, state and local laws in assessing what accommodations must be offered and whether there is an undue hardship exception. For example, many eligible employees will be able to utilize unpaid leave under the federal Family and Medical Leave Act, which does not contain the same undue hardship exception as under the PWFA or ADA.
• Employers should modify their nonretaliation policies to include a prohibition on retaliation related to employees exercising their right to request accommodations for pregnancy, childbirth and related medical reasons.

Update: 17 States File Suit, Alleging PWFA Final Rule Is Unconstitutional

The final rule is not without controversy and, as expected, triggered immediate legal challenge.

On April 25, 2024, 17 states, led by Tennessee Attorney General Jonathan Skrmetti and Arkansas Attorney General Tim Griffin, along with Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia, filed a complaint in the Eastern District of Arkansas for injunctive and declaratory relief, seeking to invalidate the “abortion-accommodation mandate” in the final rule. The state attorneys general argue that the final rule “hijack[s] [] new protections for pregnancies by requiring employers to accommodate workers' abortions—something Congress did not authorize.”

The state attorneys general assert that the final rule violates the Administrative Procedure Act (APA) by contravening the statutory provision, structure and drafting history in three key ways: (1) it impermissibly construes a “known limitation” or “medical condition” to include elective abortions; (2) it is in conflict with the federal government’s statutory prohibitions on abortion funding; and (3) the drafting history of the PWFA does not allow for inclusion of abortion accommodations because key PWFA sponsors explicitly rejected that the EEOC could require employers to accommodate abortions.

The complaint also asserts that the final rule’s abortion-accommodation mandate violates the U.S. Constitution by violating federalism, state sovereign immunity and the First Amendment protection of speech and religious liberty.

Additionally, the state attorneys general claim that the final rule is “arbitrary and capricious” under the APA because it overlooks federalism by forcing states to accommodate abortions that are illegal by certain states’ laws, infringes on both employee and employer religion and speech rights, and does not correctly assess the costs associated with implementing an abortion-accommodation mandate. Finally, the complaint asserts that the EEOC’s independent governing structure is unlawful and, therefore, the final rule should be voided.

Duane Morris will provide updates on the status of this lawsuit and its impact on the final rule as the case develops. In the meantime, employers should examine their current practices and prepare for compliance with the final rule before the anticipated June 18, 2024, effective date.

About Duane Morris

The Duane Morris Institute will offer a complimentary webinar, Prepare Now to Comply with the Pregnant Workers Fairness Act, on May 21, 2024, at 2:00 p.m. Eastern.

For More Information

If you have any questions about this Alert or have specific questions and concerns related to your operations, please contact Linda B. Hollinshead, Liran Messinger, Haley Ferise, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.