New Federal Pregnancy Regulations: Five Key Takeaways and Five Key Action Steps for Employers

Authored by Katherine Kendricks and Lori Thomas. Reprinted with permission from the June 5, 2024 edition of the Daily Report from Law.com | ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

EEOC regulations have expanded coverage beyond what employers might expect. Employers should become familiar with these requirements and take certain risk-reducing actions before the regulations take effect June 18.
 
After a year’s wait, the Equal Employment Opportunity Commission published final regulations and interpretive guidance for the Pregnant Workers Fairness Act (“PWFA”). These regulations expand coverage beyond what employers might expect. Employers should become familiar with these requirements and take certain risk-reducing actions before the regulations take effect on June 18, 2024.[1]

Five Key Takeaways:

1. Protection extends beyond pregnancy-related disabilities.
 
The regulations provide a substantially lower impairment threshold for accommodation than the Americans with Disabilities Act (“ADA”). Employers must reasonably accommodate “known limitations” arising from “physical or mental condition(s) related to, affected by, or arising out of pregnancy, childbirth, or related conditions,” regardless of the severity of the condition. This broad definition includes but is not limited to current pregnancy, past pregnancy, potential or intended pregnancy, labor, and childbirth. Thus, conditions such as infertility, menstruation, endometriosis, miscarriages, abortions, breastfeeding, pumping, hemorrhoids, nausea, anxiety, and postpartum depression may be covered.[1] Pre-existing conditions affected by pregnancy, childbirth, or a related medical condition that cause a limitation are also covered.
 
A “limitation” also may be “modest,” “minor,” or “episodic” and includes needs related to maintaining a pregnant person’s health or the health of the pregnancy and seeking healthcare related to pregnancy, childbirth, or a related medical condition. Thus, employees and applicants are entitled to accommodation under the PWFA even if the condition does not rise to the level of an ADA disability.
 
2. Employers must accommodate employees and applicants who cannot perform essential job functions absent undue hardship.
 
The PWFA adopts the ADA’s requirement that employers reasonably accommodate employees and applicants who can perform the job’s essential functions, with or without reasonable accommodation, but simultaneously extends coverage to employees and applicants even if they cannot perform one or more essential functions of the job; if that inability is “temporary,” the person could perform the essential functions “in the near future,” and the inability to perform the essential function can be reasonably accommodated.
    
“Temporary” means “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” Employers must assume pregnant persons can perform the essential functions “in the near future” since pregnancy generally lasts 40 weeks. For conditions other than a current pregnancy, the 40-week presumption does not apply. The regulations do not specify a particular length of time that would be considered “in the near future” but recognize that employers are not required to accommodate requests for indefinite leave.
 
Employers are also not required to automatically grant a request to suspend one or more essential job functions, but employers must consider potential accommodations that would allow the employer to suspend an essential job function. Possibilities include temporarily replacing essential job functions an employee or applicant cannot perform with other work, temporary reassignment to another job or light-duty work, and temporarily moving the essential function to another worker. This approach differs radically from the ADA requirements.
 
3. Employers cannot always request supporting documentation.
 
Unlike the ADA, employers can require documentation to support an accommodation request only when it is “reasonable under the circumstances.” Requiring supporting documentation is unreasonable if the limitation and need for accommodation are obvious and can be resolved in a discussion between the employer and the person requesting accommodation. For example, an employer may not reasonably request documentation for accommodation requests to:

• carry or keep water nearby;
• take additional restroom breaks;
• sit or stand when the job requires otherwise; and
• take breaks to eat and drink as needed.[3]  
  
  

Requesting documentation is also unreasonable when an employee is lactating and requests accommodation to pump at work or nurse if the baby is near the work location during work hours.

Even when it is reasonable for an employer to require supporting documentation, the employer may only request “reasonable documentation,” which is limited to the minimum documentation needed to (1) confirm the physical or mental condition, (2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, and (3) confirm a change or adjustment is needed for that reason. Employers also must accept documentation from any health-care provider. They cannot require employees to submit the documentation on a particular form or request or require an examination by a health-care provider chosen by the employer. Seeking documentation that exceeds these guidelines risks violating the PWFA.
 
4. Employers may require leave only if no other reasonable accommodation is available.
 
Employers may not require employees to take paid or unpaid leave when another effective accommodation is available that would allow the employee to continue working, but they may require employees to take leave if no other reasonable accommodation is available that would not cause undue hardship.
 
Employees may also request and accept leave as a reasonable accommodation. If an employee chooses leave, they may choose paid or unpaid leave to the same extent that employees using leave for reasons unrelated to pregnancy, childbirth, or related medical conditions are allowed. The employer must return them to the same position at the end of leave unless undue hardship would result.
 
5. Responding promptly to accommodation requests is crucial.
 
Even if a reasonable accommodation is eventually provided, unnecessary delay in making a reasonable accommodation may violate the PWFA. If an employer cannot quickly provide a reasonable accommodation, including in emergencies involving a sudden onset of a limitation, the need to order equipment for the accommodation, or when the interactive process is ongoing, interim accommodations may be appropriate and may limit exposure to liability if provided.
 
An employer’s ability to respond promptly requires educating managers on their obligations. Under disability laws, employers often instruct managers to refer all requests for accommodation to human resources. However, some accommodation requests under the PWFA may be handled by a supervisor, manager, or other employee who regularly directs the employee’s tasks. For example, supervisors should be prepared to grant an obviously pregnant employee’s request for a larger uniform without involving human resources. Because unnecessary delays resulting from requiring managers to refer all accommodation requests to human resources could expose an employer to liability, preparing supervisors to accurately identify and respond to requests promptly is crucial.
 
Five Key Action Steps:

1. Update policies and procedures to ensure compliance with the final regulations.
   
   
2. Consider sharing information about the PWFA with all employees to promote a supportive and inclusive workplace.
   
   
3. Train human resources, supervisors, managers, and employees who regularly direct other employees’ tasks regarding receiving and responding to PWFA accommodation requests.
   
   
4. Carefully document when an employee requests or selects leave as an accommodation.
   
   
5. Ensure all workplaces have posted the updated “Know Your Rights” federal poster that includes information about the PWFA.

 

[1] Legal challenges could delay the timeline, but employers should be prepared to comply with the final regulations by this date.
 
[2] The regulations contain a non-exhaustive list of examples of covered medical conditions that employers may reference for guidance. See 29 CFR Part 1636.3(b).
 
[3] These “predictable assessments” are also considered reasonable in “virtually” all cases and do not impose undue hardship.

About the Authors
 
Katherine Kendricks is a Georgia-based labor & employment attorney representing management with Lawrence & Bundy.
 
Lori Thomas is a Virginia-based labor & employment attorney representing management with Lawrence & Bundy.