By: HUB's Absence Management Team

In June 2024, the Equal Employment Opportunity Commission (EEOC) issued the final regulations for the Pregnant Workers Fairness Act (PWFA), providing stronger guidelines for employers to reference when navigating accommodation requests.

Overview

Since June of 2023, the PWFA has required employers with 15 or more employees to provide reasonable accommodations to workers who have known limitations due to pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, unless the accommodation causes the employer an undue hardship. These final regulations provide further clarity around employers’ obligations under the law.

Summary of Rules

Undue Hardship

The PWFA makes clear that employers are not required to provide accommodations that cause an “undue hardship” on a business. The regulations provide a definition of “undue hardship,” that can help employers make decisions about providing accommodations. According to the regulations, an employer must consider the following when determining if an accommodation causes an “undue hardship”:

  • It requires significant difficulty or expense: An undue hardship isn't simply any inconvenience or cost to the employer. It refers to a significant difficulty or expense in providing the requested accommodation.
  • Considering the employer's size: The size and resources of the employer are considered when evaluating undue hardship. A larger company with more resources would be expected to absorb a higher cost or adapt to logistical challenges compared to a smaller business.
  • Financial analysis: There's no one-size-fits-all definition of undue hardship. Employers may need to perform a cost analysis to demonstrate the financial strain caused by the accommodation.
  • Alternatives considered: The employer should also show they've considered alternative accommodations that might be less burdensome. This demonstrates good faith in the interactive process of finding a solution.

Reasons for Accommodations

The regulations provide an expanded definition of the physical and mental conditions arising before, during, and after pregnancy, including abortion. This includes new physical and mental conditions originating during pregnancy and pre-existing conditions exacerbated by pregnancy or childbirth. These conditions include, but are not limited to, current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of contraception, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.

Further, the EEOC makes clear that there is no level of severity a condition must meet to be eligible for accommodations. The PWFA is intended to cover conditions that do not rise to the level of disability as applied under the Americans with Disabilities Act (ADA).

Examples of reasonable accommodations under the PWFA can include, but are not limited to job restructuring, schedule changes, paid or unpaid leave, providing reserved parking spaces, and telework. It is important to note that an employee may not be required to take a leave if another reasonable accommodation can be provided that would allow an employee to continue to work.

Essential Job Functions

Unlike the ADA, where an employee must be able to perform the essential functions of the job with or without accommodations, an employee requesting an accommodation under the PWFA remains a qualified employee even if they may temporarily be unable to perform an essential function of the job if the employee is expected to be able to perform those functions in the near future. The rules define “in the near future” as “generally forty weeks from the start of the temporary suspension of an essential function.” However, in the case of childbirth or related medical conditions, “in the near future” must be determined on a case-by-case basis.

Further, the time an employee is on post-partum leave should not be included in the calculation the amount of time for which the employer must consider waiving an essential job function. Whether the employer can reasonably accommodate the person’s inability to perform the essential function must be reassessed when the employee returns to work from pregnancy or childbirth, regardless of whether the employer provided the same or a different accommodation either prior to or during the employee’s pregnancy. Once the employee is able to return to work, the clock restarts, and an employer must consider whether and for how long it can temporarily remove an essential job function as an accommodation.

Interactive Process

Similar to the ADA, the notice of need for accommodation can be verbal or in writing using plain language and can come from the employee or a representative. The final rules emphasize that the employee or their representative need only identify the limitation and their need for an adjustment to a manager, supervisor, HR representative, someone who has supervisory authority for the employee, or another appropriate official to trigger the interactive process.

During the interactive process, an employer may only request the minimum documentation needed to confirm the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions and describe the adjustment or change at work due to the limitation. The rules also clarify that there are circumstances in which it is not reasonable to ask for documentation. This includes when:

  • the employer has sufficient information to determine whether the employee has a qualifying limitation or the limitation or adjustment needed is obvious and the employee has provided self-confirmation;
  • the reasonable accommodation relates to a time and/or place to pump or to nurse during work hours, and the employee provides self-confirmation;
  • the requested accommodation is available to employees without known limitations pursuant to a policy or practice that does not require the submission of documentation.

Additionally, the rules state that there are certain accommodations which should, in almost all cases, be found to be reasonable and not require documentation. These are:

  • allowing an employee to carry and drink water, as needed, in their work area;
  • allowing an employee additional restroom breaks;
  • allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
  • allowing an employee breaks to eat and drink as needed.

Next Steps

The information in this bulletin is not exhaustive. Employers should review the “Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act” to ensure they are aware of all requirements and restrictions under the PWFA. Employers should review their policies to ensure they are in alignment with the PWFA or create a policy if they do not have one currently in place.

If you have any questions, please contact your HUB Advisor. View more Workforce Absence Management updates in our WAM Bulletins page.

NOTICE OF DISCLAIMER

Neither Hub International Limited nor any of its affiliated companies is a law or accounting firm, and therefore they cannot provide legal or tax advice. The information herein is provided for general information only and is not intended to constitute legal or tax advice as to an organization’s specific circumstances. You should consult an attorney, accountant, or other legal or tax professional regarding the application of the general information provided here to your organization’s specific situation in light of your organization’s particular needs.