Michigan Labor & Employment Law Blog

Preparing Employers: New Regulations for the Pregnant Workers Fairness Act

On April 15, 2024 the U.S. Equal Employment Opportunity Commission (EEOC) published final regulations on the new federal Pregnant Workers Fairness Act (PWFA).[1] The new regulations, which will take effect June 18, 2024, dramatically expand the scope of workplace accommodations that covered employers will be required to provide to pregnant employees (both before and after a pregnancy), and as a result employers should be preparing now for the new requirements.[2]

Background.

The PWFA, which took effect June 27, 2023, adds employer obligations beyond those already available to pregnant employees under existing federal discrimination laws, such as the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act (FMLA), and the PUMP Act.[3] Specifically, the PWFA requires employers (both public and private) with 15 or more employees to provide reasonable accommodations to employees experiencing known limitations arising from pregnancy, childbirth or related medical conditions, including postpartum issues, unless the employer can show that the accommodation imposes an undue hardship on the employer.

The PWFA also extends employer obligations not to deny job opportunities to employees or applicants with such pregnancy related conditions and prohibits employers from disciplining or retaliating against employees who have requested accommodations. Similar to other federal discrimination laws, complaints under the PWFA will be enforced through Title VII. Also, covered employees may file complaints of PWFA violations with the EEOC or related agencies, which will conduct investigations, pursue enforcement, and process appeals using the same process under Title VII.

Definition of “Known,” “Limitations” and “Pregnancy, Childbirth, or Related Medical Conditions.”

EEOC’s new rule begins with broad definitions of the PWFA phrases “known limitation” and “pregnancy, childbirth, or related medical conditions” for which accommodations are required. According to EEOC, “known” refers to an “employee or the employee’s representative” (including an applicant or applicant representative) who has communicated to the employer about a limitation, and “limitations” refers to “a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions”.[4] The rule then broadly defines such pregnancy, childbirth, or related medical conditions to include “uncomplicated pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.”[5]

Reasonable Accommodations.

The rule also provides a nonexclusive list of “reasonable accommodations,” some of which are beyond the scope of accommodations previously thought available to pregnant employees. These include:

• Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom.
• Changing food or drink policies to allow for a water bottle or food.
• Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing.
• Changing a uniform or dress code or providing safety equipment that fits.
• Changing a work schedule, such as having shorter hours, part-time work, or a later start time.
• Temporary reassignment.
• Leave for health care appointments.
• Light duty or help with lifting or other manual labor; or
• Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.[6]

Importantly, the rule’s description of reasonable accommodations also includes a possible suspension of an essential job function if the pregnant employee will be capable of performing the essential function “in the near future.” Under the rule, “in the near future” is presumed to be 40 weeks for a pregnant employee, but for an employee who is not pregnant is determined on a case-by-case basis.

Limits on Employer Rights to Request Medical or Other Documentation for Accommodations.

The new rule still permits employers to request medical or similar documentation from an employee who requests pregnancy related accommodations, but it also goes further to require employer requests to be “reasonable under the circumstances” to determine if the employee has a pregnancy related condition that requires accommodation. The rule also identifies five situations in which an employer request for information or documentation is not considered reasonable:

1. If the condition and need for accommodation is obvious, such as an obviously pregnant employee who seeks a larger size uniform.
2. If the employer already has information sufficient to determine that the employee has a covered condition, such as morning sickness; in such instance the employer cannot request information for future incidents of morning sickness.
3. When the employee is currently pregnant and needs any of four “predictable assessments” accommodations, including additional breaks to use the bathroom or to eat and drink, a need to carry water to drink, or a need to sit if their job requires standing or to stand if their job requires sitting. These predictable assessments are considered under the rule to be reasonable “in virtually all cases.”
4. If the employee is lactating and accommodation is sought to allow the employee time or place to express milk or to nurse during work hours.
5. If the accommodation is available to other employees who are not subject to the PWFA, the employer may not ask for more documentation that is required for other such employees.

Recommendations for Employers.

The new regulations create significant updated or additional obligations and potential liabilities for covered employers. As a result, employers should use the time before the June 18, 2024 effective date to assure that they are in compliance with the new regulation’s requirements. Steps that covered employers should consider include the following:

1. A review and, where needed, revisions to current workplace policies and procedures to assure that they address the new PWFA obligations and the new regulation and guidance that will soon take effect. This should also include a review of policies or practices the company uses to request evidence from an employee of the condition for which an accommodation is requested (the “interactive process”), to assure the employer requests do not exceed the new limits for pregnancy related conditions.
2. A review and update to Company forms or other documents used by employees to request workplace accommodations to assure that the forms include the new available conditions under the PWFA and the new regulation.
3. Training of human resources, benefits, and compliance professionals, and supervisors and managers, to assure that they know of the new PWFA and regulatory obligations and are trained in how to recognize such requests and how to reply to them. Such trainings should especially focus on the broad scope of pregnancy, childbirth, and related medical conditions that qualify for reasonable accommodations, and the expanded scope of potential accommodation (including temporary suspension of essential job functions) cited by the EEOC in the regulation, some of which are also presumed to be reasonable.

For additional assistance in your organization’s management of PWFA requirements and the new EEOC regulations, please contact a member of Foster Swift’s Labor & Employment Law team.

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[1] 42 USC Section 2000gg, available at https://www.eeoc.gov/statutes/pregnant-workers-fairness-act.
[2] Final Rule available at https://www.federalregister.gov/d/2024-07527.
[3] PUMP for Nursing Mothers Act available at https://www.dol.gov/sites/dolgov/files/WHD/flsa/PUMP-act_hr2617.pdf.
[4] What You Should Know About the Pregnant Workers Fairness Act, published by the EEOC at https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
[5] Id.
[6] Id.

Categories: Alerts and Updates, Employee Handbook, Employment, Labor Relations