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Changes on the horizon for employers with pregnant workers

Studies have found that American birth rates typically peak in the summer months, so now is a great time for employers to review their policies and practices around pregnancy and pregnant workers.

This is particularly true this year, as the new Pregnant Workers Fairness Act (PWFA) will go into effect on June 18, 2024. The Equal Employment Opportunity Commission recently issued its final rules for this new federal law.

The Pregnant Workers Fairness Act

The PWFA expands federal protections for qualified employees or applicants who are experiencing known limitations related to pregnancy, childbirth, or related medical conditions, requiring employers with 15 or more employees to provide reasonable accommodations to such employees, unless doing so would cause the employer to sustain undue hardship.

Individuals who qualify for protection under the Americans with Disabilities Act (ADA) also qualify for PWFA protection. Such individuals may be either an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.

The PWFA also adds protections for another class of qualified individuals who may not be capable of performing essential functions of the employment position if they satisfy three conditions: 1, their inability to perform essential functions is temporary; 2, the individual could perform the essential functions in the near future; and 3, the inability to perform the essential functions can be reasonably accommodated. Whether the employee could perform these essential functions in the near future should be determined on a case-by-case basis, and is assumed for an employee who is pregnant, as they generally could be expected to do so within 40 weeks.

Further, to qualify for PWFA protections, such employees or applicants must be experiencing known limitations. A limitation is defined by the PWFA as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” To be considered “known,” either an employee or representative must communicate such limitations to the employer.

Physical or mental conditions that constitute a limitation need not meet the definition of “disability” under the ADA. Rather, physical or mental conditions might be minor, modest or episodic impediments, a need or problem relating to the employee’s health or the health of the pregnancy, or seeking health care related to pregnancy, childbirth, or a related medical condition. “Related medical conditions” will be considered quite broadly, with the EEOC’s final rule laying out a long inexhaustive list of examples ranging from termination of pregnancy to nausea or vomiting, to postpartum depression. The use of the phrase “related to, affected by, or arising out of” further indicates that pregnancy, childbirth, or related medical conditions need not be the sole cause of the condition to be protected by the PWFA.

What this means for business owners

With the implementation of the PWFA, employers should be prepared to offer reasonable accommodations relating to pregnancy or childbirth to qualified employees. Such accommodations might include acquisition or modification of equipment or devices, more frequent or longer break periods, assistance with manual labor, or modification of work schedules or job assignments.

In addition, employers should be aware of the limitations of their ability to request supporting documentation. An employer is not required to seek supporting documentation from an employee or applicant who requests an accommodation under the PWFA, and in instances related to so-called “predictable” requests for “simple modifications,” an employer is essentially prohibited from requesting supporting documentation. These modifications are outlined in the rule as follows: “(1) allowing an employee to carry or keep water near and drink, as needed; (2) allowing an employee to take additional restroom breaks, as needed; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (4) allowing an employee to take breaks to eat and drink, as needed.”

In other instances when an employer decides to request supporting documentation, it is important to understand the limitations set out in the PWFA. An employer may seek supporting documentation in instances when it is reasonable to require such documentation under the circumstances to determine whether the employee has a known limitation and needs accommodation as a result. The documentation itself also must be reasonable; employers may only seek the minimum documentation sufficient to confirm the employee’s condition and describe the accommodation needed. An employer cannot justify failing to make a reasonable accommodation based on the employee or applicant failing to provide supporting documentation unless the employer has provided the employee with sufficient time to obtain and provide the documentation requested.

Employers should also be sure not to engage in activity that coerces, intimidates, threatens, harasses, or interferes with any individual exercising or enjoying their rights under the PWFA, or with any individual assisting or encouraging another in their exercise or enjoyment of rights under the PWFA.

Finally, employers should take note that the PWFA does not supersede or replace federal, state, or local laws that are more protective. Employers should take special care to ensure that their policies and practices align with both the PWFA and existing state law.

Wilson Jarrell is a Barran Liebman partner. He advises and represents employers on a wide range of workplace issues. 

Lex Shvartsmann is a law clerk with Barran Liebman . She partners with attorneys in client trainings, legal research, and drafts of employment policies and handbooks.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the DJC guarantees the accuracy or completeness of any information published herein.