The Pregnant Workers Fairness Act (2023) Final Rulemaking

Overview

On April 15, 2024, the Equal Employment Opportunity Commission (“EEOC”) issued final rulemaking implementing provisions of the 2023 Pregnant Workers Fairness Act (“PWFA”), which went into effect on June 27, 2023, and requires employers with 15 or more employees to provide reasonable accommodations for known limitations of employees and applicants related to pregnancy, childbirth or related medical conditions. Substantive compliance with the requirements of the final rule is deferred until June 18, 2024.

According to the EEOC, the final rule provides important guidance to help employers meet their responsibilities and aid job seekers and employees in understanding their rights. This Alert provides important guidance to help employers meet their responsibility and aid job seekers and employees in understanding their rights. Following, the Baldwin Regulatory Compliance Collaborative provides a high-level summary of the final rule and encourages employers to seek assistance of qualified legal counsel, knowledgeable employee benefit consultants, and other practitioners who may offer interpretive guidance and compliance assistance.

Key Provisions

The PWFA covers only those applicants and employees who are “qualified individuals”, which mirrors the same defined term in the American with Disabilities Act (“ADA”). Under both the ADA and PWFA, an employee or applicant is a qualified individual if they can perform the essential functions of the job with or without reasonable accommodation. However, unlike the ADA, the PWFA also covers employees or applicants who cannot, temporarily, perform an essential function of the job if the qualified individual is expected to be able to perform the essential function in the near future. 

The PWFA protects employees or applicants with “known limitations” related to pregnancy, childbirth, or many other related conditions. A limitation is “known” to the employer when the employee or applicant has communicated the limitation to the employer. “Limitation” means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or other many related conditions. The definition of “Pregnancy,” “Childbirth,” or “Related Medical Conditions” (including abortion) covers a broad definition of “pregnancy, childbirth, or related medical conditions” to include current pregnancy, past pregnancy, potential or intended pregnancy including fertility treatment, the use of contraception, lactation, labor and childbirth, menstruation, miscarriage, stillbirth, and having or choosing not to have an abortion among other conditions. Also under this definition, the “limitation” includes preexisting conditions that are exacerbated by pregnancy or childbirth (e.g. diabetes or high blood pressure).

Employer Action Items

• Learn the new accommodation requirements of the Final Rule (see “Regulatory Requirements” listed below);
• Post the revised U.S. Equal Employment Opportunity Commission (EEOC) “Know Your Rights: Workplace Discrimination is Illegal” poster in the workplace, and remove their old poster to comply with the “Pregnant Workers Fairness Act” (PWFA);
• Revise organizational leave and disability related policies and procedures to detail the organizational approach to PWFA accommodation and leave, as well to explain any potential regulatory or legal conflicts of interpretation, and how the employer will administer same;
• Train HR staff, managers, and leaders to understand, and to prepare them for administration of the organization’s accommodation, leave, and disability standards, as detailed in the appropriately revised policies and procedures;
• Employers should become familiar with all reasonable accommodations outlined in the PWFA. The House Committee on Education and Labor’s report on the PWFA, https://www.congress.gov/congressional-report/117th-congress/house-report/27/1?overview=closed provides several examples of possible reasonable accommodations.

Regulatory Requirements

1. Accommodation Requirements (non-exhaustive list):
   • Allowing an employee to carry water and drink, as needed, in the employee’s work area;
   • Allowing an employee to take additional restroom breaks as needed;
   • Allowing an employee whose work requires standing to sit and whose work requires sitting to stand;
   • Allowing an employee breaks as needed, to eat and drink;
   • Additional potential accommodations:
     • Job restructuring;
     • Schedule changes;
     • Additional breaks and time off;
     • Modifying PPE, uniforms, and equipment;
     • Remote work; light duty;
     • Temporarily suspending essential functions.
     • Time off to recover from childbirth or a miscarriage, among others;
   • Offering written guidance detailing and/or requiring:
     • Limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or stillbirth;
     • migraines;
     • lactation;
     • and pregnancy-related conditions that are episodic, such as morning sickness;
   • Communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner;
     • Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances;
     • Detailing when an accommodation would impose an undue hardship on an employer and its business; and
     • Disclosures detailing Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.
2. Inversely, the PWFA Prohibits Employers From:
   • Requiring an accommodation not determined through an interactive process;
   • Denying opportunities based on the need to provide accommodation;  
   • Requiring leave where another reasonable accommodation is possible;  
   • Retaliating against an individual for requesting or using a reasonable accommodation, opposing unlawful discrimination or participating in a proceeding under the PWFA; and,
   • Interfering with an individual’s rights under the law.

The final rule provides additional guidance for accommodation requirements, detailing that pregnant workers have the ability to work and the maintain a healthy pregnancy, and to assist employers in understanding their duties under the law. The accommodation requirements mandate that employers provide “reasonable accommodations,” or changes at work, for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.

3. What is “Undue Hardship”?

Both the PWFA and ADA exempt employers from providing a reasonable accommodation if such accommodation would cause an “undue hardship” to the employer. An undue hardship exists when providing an accommodation would result in significant difficulty or expense to the employer’s operations. The PWFA acknowledges that, in some cases, a reasonable accommodation may include the temporary suspension of an essential function of the job. The final rule provides additional factors to consider in an undue hardship analysis that are specific to the temporary suspension of an essential function of the job including:

• The length of time the employee will be unable to perform the essential function(s);

• Whether there is work for the employee to accomplish by allowing the employee to perform the remaining functions of the job, transferring the employee to a different position, or assigning the employee to light or modified duty;
• The nature of the essential function(s), including frequency;
• Whether the employer has provided other similarly situated employees with temporary suspensions of the essential function(s);
• Whether other employees, temporary employees or third parties can perform or be hired to perform the essential function(s) if necessary; and
• Whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

4. Penalties for Non-Compliance

Failure to comply with the PWFA may result in substantial penalties, including injunctive relief (e.g., reinstatement), back pay, compensatory damages, punitive damages, front pay, and attorneys’ fees and costs. Therefore, employers should familiarize themselves with the final rule and ensure they are in compliance with their obligations under the PWFA. If necessary, employers should also make any necessary updates to existing practices and procedures and train supervisors and HR personnel on their responsibilities under the law, such as handling and responding to accommodation requests.

The penalty amount will depend on the specific situation. There is a statutory cap for damages based on employer size. For employers with 15-100 employees, the statutory cap is $50,000. For employers with 101-200 employees, the cap is $100,000. For employers with 201-500 employees, the cap is $200,000. For employees with over 500 employees, the limit is $300,000. As with the ADA, damages are limited if the claim involves the provision of a reasonable accommodation, and the employer makes a good faith effort to meet the need for a reasonable accommodation.

5. How does this EEOC final rule impact a state’s FMLA and other Leave Rules?
   • Please see the information for information of the states’ FMLA and other Leave Policies at this LINK;
   • Employers are also prohibited from disclosing medical information, including the existence of a pregnancy, they may receive about an individual;
   • Employers must display the updated (2023) “Know Your Rights” poster, https://www.eeoc.gov/sites/default/files/2023-06/22-088_EEOC_KnowYourRights6.12.pdf,  which now includes information about the PWFA.
6. Next Steps for Employers:
   • The final regulations are published in the Federal Register at this LINK and becomes effective June 18, 2024.
   • Employers can review their existing accommodation policies and revise them according to the PWFA’s requirements. Employers can also begin engaging in the interactive process with covered employees and applicants who may need accommodations per the PWFA.
   • The final rule in implementing the PWFA provides important guidance to help employers meet their responsibilities and aid job seekers and employees in understanding their rights.

Additional Information & Related Topics

• Employers can explore the EEOC’s What You Should Know About the Pregnant Workers Fairness Act, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act, for FAQs.
• 117-27 – PREGNANT WORKERS FAIRNESS ACT, https://www.congress.gov/congressional-report/117th-congress/house-report/27/1?overview=closed.
• The document “Checklist for Complying with the Pregnant Workers Fairness Act” (https://cms.zywave.com/content/713737?referenceGuid=5e554f1b-37d0-4cd2-a406-11e3fd6f31b5&fromLabel=Search%20results&internalHref=%2Fsearchresults%3Fquery%3DPregnant%2520Workers%2520Fairness%2520Act%26searchType%3Dcontent%26pageIndex%3D0%26sortType%3Dmatch&defaultLanguage=en-us) walks employers through compliance requirements under the Pregnant Workers Fairness Act.
• We also have a “Sample Policy for Accommodations Under the Pregnant Workers Fairness Act” (https://cms.zywave.com/content/715445?referenceGuid=843f563e-9f9d-4edb-9c97-1f3a4d7d463a&fromLabel=Search%20results&internalHref=%2Fsearchresults%3Fquery%3DPregnant%2520Workers%2520Fairness%2520Act%26searchType%3Dcontent%26pageIndex%3D0%26sortType%3Dmatch&defaultLanguage=en-us) that may be helpful.
• “HR Toolkit – Pregnant Workers Fairness Act” (https://cms.zywave.com/content/716734?referenceGuid=a2c474fb-6cae-4831-91a8-6676ac70c782&fromLabel=Search%20results&internalHref=%2Fsearchresults%3Fquery%3Dpregnant%2520workers%2520fairness%2520act%26searchType%3Dcontent%26pageIndex%3D0%26sortType%3Dmatch&defaultLanguage=en-us) provides an overview for employers on how to handle requests for accommodation for limitations related to pregnancy, childbirth and related medical condition under the Pregnant Workers Fairness Act.

If you have comments, questions, or suggestions respecting the content of this ALERT or any other BRCC publication, please do not hesitate to reach out to the Baldwin Regulatory Compliance Collaborative at the following address:

• AskCompliance@baldwinriskpartners.com

Kindest regards,

The Baldwin Regulatory Compliance Collaborative