The PWFA Regulations Have Arrived: What to Expect When Your Employees Are Expecting

When it was enacted in June 2023, the Pregnant Workers Fairness Act (“PWFA”) became the first law enforced by the U.S. Equal Employment Opportunity Commission (“EEOC”) to require that employers provide pregnancy-related accommodations unrelated to disability. Particularly given the landmark nature of this law, the EEOC committed to providing implementing regulations. The agency finally released its much-anticipated PWFA regulations on April 15, 2024, along with a summary of key provisions and interpretative guidance. Here are the top five takeaways for employers.

1. Broad Interpretation Of “Pregnancy, Childbirth or Related Medical Conditions,” Resulting in Legal Challenges

The PWFA regulations provide a “non-exhaustive” list of conditions that can give rise to a request for a pregnancy-related accommodation, including: current pregnancy (uncomplicated or complicated), past pregnancy, potential or intended pregnancy (e.g., infertility, fertility treatment, and the use of contraception), labor and childbirth, termination of pregnancy (e.g., miscarriage or abortion), gestational diabetes, preeclampsia, endometriosis, chronic migraines, nausea or vomiting, anxiety, depression, menstruation and conditions related to lactation.

That these regulations contemplate abortion as a pregnancy-related condition entitled to reasonable accommodation has sparked a firestorm of feedback, including a lawsuit by 17 state attorneys general alleging that the EEOC’s enforcement of abortion-related workplace accommodations is unconstitutional. In addition, a U.S. District Court in Texas recently enjoined federal agencies from enforcing the PWFA against the state of Texas and its divisions and agencies (but not private employers in the state). The EEOC has appealed this decision to the Fifth Circuit Court of Appeals. Notably, the regulations do not require employers to pay for abortions or cover travel-related costs for workers to obtain an abortion.

2. No Formula for Accommodation Requests

The regulatory guidance confirms that “simple exchanges of information,” such as brief conversations or emails, can trigger an employer’s accommodation obligations. To illustrate this principle, the guidance identifies the following information exchanges as sufficient to kickstart the interactive process:

• “I’m having trouble getting to work at my scheduled starting time because of morning sickness,”
• “I need more bathroom breaks because of my pregnancy;” and
• “I need time off from work to attend a medical appointment because of my pregnancy.”

The regulations make clear that an employee’s failure to fill out paperwork or speak to the “right” supervisor or designated department are not grounds for either delaying or denying a requested accommodation.

3. “Predictable” Accommodations Assumed to be Reasonable

The regulations identify the following four “predictable” accommodations as those presumed to be reasonable and to not impose an undue hardship:

• Allowing an employee to carry or keep water near and drink, as needed;
• 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, as needed; and
• Allowing an employee to take breaks to eat and drink, as needed.

The regulations convey that these accommodations should be granted in almost every circumstance without documentation.

4. Temporary Suspension of Essential Functions

An individual is qualified under the PWFA—and therefore entitled to a reasonable pregnancy-related accommodation—even if the individual cannot currently perform an essential function of the job, so long as the limitation is for “a temporary period” and the essential function can be performed in the “near future” (i.e., oftentimes within 40 weeks). This standard differs from the familiar standard set forth in the Americans with Disabilities Act (“ADA”), under which a “qualified individual” is entitled to a reasonable accommodation only if that individual can perform the essential functions of the job with or without a reasonable accommodation.

5. Supporting Documentation Unnecessary for Certain Accommodations

The regulations confirm that, although employers may seek supporting medical documentation if it is reasonable under the circumstances, they can only request the minimum reasonable documentation sufficient to confirm the physical or mental condition that underlies the employee’s limitation. However, the regulations prohibit employers from seeking supporting documentation in several situations, including when:

• The limitation and need for a reasonable accommodation are obvious;
• The employer already has sufficient information to support a known limitation related to pregnancy;
• The request is for one of the four “predictable” accommodations;
• The request is for a lactation accommodation; or
• The accommodation is available without documentation for other employees seeking the same accommodation for non-PWFA reasons.

The PWFA regulations are slated to take effect on June 18, 2024. Over the next several weeks, employers should focus on updating their policies and procedures as necessary to ensure compliance with the PWFA, its implementing regulations and interpretative guidance. As a reminder, the PWFA does not preempt state or local laws that provide greater pregnancy-related protections for employees.

Quarles stands ready to assist with any questions relating to the PWFA or any more protective state or local laws. Please contact your local Quarles attorney or:

• Lindsey W. Davis: (414) 277-3037 / lindsey.davis@quarles.com
• Brenna M. Wildt: (414) 277-5328 / brenna.wildt@quarles.com