Pregnant Workers Fairness Act Final Rules: What Employers Need to Know

The Equal Employment Opportunity Commission has published a final rule that will give new protections akin to disability accommodation under the Americans with Disabilities Act to pregnant workers and those who have recently given birth.

The rule, which takes effect June 18, will require employers to make reasonable accommodations for employees or applicants with known limitations related to pregnancy, childbirth or related medical conditions.

The new regulations apply to employers with 15 or more workers on their payroll. This is a significant new labor law and another source of potential lawsuits for employers.

Who is covered

Essentially, the Pregnant Workers Fairness Act (PWFA) requires employers to make reasonable accommodations for these workers if they ask for it, particularly if they are temporarily unable to perform one or more essential functions of their job due to issues related to their pregnancy or recent childbirth.

Reasonable is defined as not creating an undue hardship on the employer. Temporary is defined as lasting for a limited time, and a condition that may extend beyond “the near future.” With most pregnancies lasting 40 weeks, that time frame would be considered “the near future.”

What’s required

Like what is required by the ADA, if an employee asks for special accommodation due to a covered issue under the PWFA, the employer is required to enter into an interactive process with the worker to identify ways to accommodate her.

The law requires employers to accommodate job applicants’ and employees’ “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”

The condition does not need to meet the ADA’s definition of disability and the condition can be temporary, “modest, minor and/or episodic.”

The PWFA covers a wide range of issues beyond just a current pregnancy, including:

• Past and potential pregnancies,
• Lactation,
• Contraception use,
• Menstruation,
• Infertility and fertility treatments,
• Miscarriage,
• Stillbirth, and
• Abortion.

What’s a ‘reasonable accommodation’

The law’s definition of reasonable accommodation is similar to that of the ADA. The regulation lays out four “predictable assessments,” which would not be an undue hardship in “virtually all cases”. These would allow an employee to:

• Carry or keep water nearby and drink, as needed;
• Take additional restroom breaks, as needed;
• Sit if the work requires standing, or stand if it requires sitting, as needed; and
• Take breaks to eat and drink, as needed.

Employer rights

As mentioned, an employer may reject an accommodation if it would create an undue hardship, which is defined as a significant difficulty or expense.

Employers may ask for documentation under the PWFA if it is reasonable and the employer needs it to determine whether the employee or applicant has a covered condition and has asked for accommodation due to limitations the condition causes her.

If the worker is obviously pregnant, the employer may not require documentation.

The takeaway

Employers with 15 or more workers will need to add mentions of the new rule in their employee handbooks and train managers and supervisors about it, in order to keep from running afoul of the PWFA.

The ramping up period is short and it’s important that you have in place policies that require supervisors and managers to notify human resources if a worker asks for special accommodations.