EEOC publishes final rule on Pregnant Workers Fairness Act

The Equal Employment Opportunity Commission recently issued a final rule to implement the Pregnant Workers Fairness Act (PWFA). The PWFA generally requires covered employers to reasonably accommodate a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless doing so will cause the employer an undue hardship. The PWFA, which went into effect June 27, 2023, generally applies to private employers and public sector employers that have 15 or more employees.

According to the EEOC, the final rule and interpretive guidance provide clarity to employers and employees (including applicants) about their respective rights and responsibilities under the PWFA. This is accomplished, in part, with detailed definitions and examples. Below are some key requirements and provisions of the PWFA and the final rule that employers must know to avoid violations.

Under the PWFA, a covered employer may not:

  • Fail to make a reasonable accommodation for the known limitations of a qualified employee, unless the accommodation would cause an undue hardship.
  • Require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process.
  • Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation.
  • Require a qualified employee to take leave if another reasonable accommodation can be provided that would let the employee keep working.
  • Punish or retaliate against an employee or applicant for requesting a reasonable accommodation, opposing unlawful discrimination or participating in a PWFA proceeding.
  • Coerce individuals who are exercising their rights or helping others exercise their rights under the PWFA.

It is important to note that the PWFA applies only to accommodations. Claims of discrimination based on pregnancy, childbirth, or related medical conditions must be pursued under other laws prohibiting pregnancy-related discrimination, such as Title VII or the Americans with Disabilities Act. A reasonable accommodation is a change in the work environment or the way things are usually done at work. The final rule provides various examples, such as frequent breaks, telework, light duty, permitting employees to sit or stand, temporarily suspending one or more essential functions, and adjusting or modifying policies.

Significantly, the final rule identifies four simple modifications that will almost always be considered reasonable accommodations that do not impose an undue hardship when requested by a pregnant employee. These “predictable assessments” essentially require employers to allow pregnant employees to do the following, as needed:

  • carry or keep water nearby to drink;
  • take additional restroom breaks;
  • sit or stand during work; and
  • take breaks to eat and drink.

An employee or applicant who can perform the essential functions of the job with or without a reasonable accommodation is considered qualified under the PWFA. An employee can also be considered qualified if their inability to perform the essential job functions is temporary, the employee could perform the functions in the near future, and the inability to perform the essential functions can be reasonably accommodated. This, according to the EEOC, means that an employee who is temporarily unable to perform essential job functions may require light duty or a change in work assignments as a reasonable accommodation under PWFA.

Under the final rule, an employee requesting a reasonable accommodation must identify the limitation (the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions) and that the employee needs an adjustment or change at work due to the limitation. Once the employer knows, it should engage in the interactive process with the employee or applicant to discuss the known limitation and the adjustment or change needed at work.

When considering reasonable accommodations under PWFA, the EEOC urges employers to keep the following tips in mind.

  • Train supervisors about the PWFA as they are particularly likely to receive accommodation requests.
  • Workers do not need to use specific words to request an accommodation. Once an employee requests an accommodation, employers must use the interactive process.
  • Limitations may be minor and may be associated with an uncomplicated pregnancy and may require accommodations that are easy to make.
  • A worker may need different accommodations as the pregnancy progresses, they recover from childbirth, or the related medical condition improves or gets worse.

Additional information about pregnancy-related discrimination is available from the EEOC.

Employers should carry Employment Practices Liability Insurance to protect against mistakes that are more likely to result from the confusion that always seems to accompany regulatory rule changes. The Human Equation prepares all risk management and insurance content with the professional guidance of Setnor Byer Insurance & Risk.

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