04-25-2024
The Pregnant Workers Fairness Act ("PWFA") went into effect in June 2023. This month, the EEOC issued its final regulations and guidance for the new Act. The law requires employers to provide reasonable accommodations to pregnant workers for known limitations related to their pregnancy, childbirth, or related medical conditions. These limitations need not rise to the level of a disability or impact a major life activity, and employees must communicate the limitations to employers. Employers must engage in an interactive process and may reduce their obligation to accommodate with a showing of undue hardship such as significant difficulty or expense.
Employees generally seeking accommodation must be able to perform the essential functions of their position with or without reasonable accommodation. However, under the PWFA, if the employee's inability to perform the essential functions is "temporary," the employee could perform the essential functions in the "near future," or the inability to perform the essential functions "can be reasonably accommodated," they may still be qualified. Related medical conditions may include complications related to miscarriage, stillbirth, abortion, and post-partum complications like anxiety, depression, incontinence, menstruation, and lactation.
The EEOC expects employers to generally allow employees entitled to PWFA protection to carry or keep water near them, to take additional bathroom breaks, to allow the employee to sit and stand as needed, and to permit the employee to take eating and drinking breaks. The guidance limits when employers may seek documentation to be “reasonable.” In addition, employers may not engage in "unnecessary delays" to make reasonable accommodations, nor must an employee accept an accommodation. The Act also prohibits retaliation for opposing practices made unlawful by the PWFA.