What Employers Need to Know About Accommodations for Pregnant Employees

The Pregnant Workers Fairness Act provides various accommodations for pregnant employees. Here’s what employers need to know.

Employers with pregnant workers have to navigate a number of different scenarios involving both state and federal protections. In addition to the federal Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and state leave of absence entitlements and accommodations, covered employers must also comply with the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023, with the final regulations published by the Equal Employment Opportunity Commission (EEOC) effective June 18, 2024. The PWFA is modeled after the ADA and applies to employers with 15 or more employees. It requires covered employers to make reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

To help employers understand how the PWFA fits into the landscape of other pregnant worker protections, OneDigital has compiled some of the most frequently asked questions and answers.

What is the PWFA?

The PWFA is primarily an accommodation and a workplace anti-discrimination law, not a leave entitlement. Leave may be considered a reasonable accommodation, but it is an accommodation of last resort. The goal of the PWFA is to provide accommodations that allow a qualified worker to continue working. However, leave may be considered for appointments with health care providers, recovery from childbirth, and other reasons related to pregnancy, childbirth, or related medical conditions.

Who qualifies for accommodations under the PWFA?

An employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position. Under the PWFA, an employee who cannot do one or more essential functions of a job may also be considered qualified if: (1) any inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated.

What is a known limitation that qualifies an employee for PWFA accommodation?

The PWFA is modeled after the ADA in part. Where the ADA addresses disabilities, the PWFA instead addresses known limitations. A known limitation is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer, regardless of whether such condition meets the definition of a disability under the ADA. The limitation is “known” to the employer if it is obvious or has been communicated by the employee or applicant or their representative. The communication is not required to be in writing.

The final rule explains that the physical or mental condition (a limitation) may be a modest, minor, and/or episodic impediment or problem. A limitation may be that a worker affected by pregnancy, childbirth, or related medical conditions has a need or problem related to maintaining their health or the health of the pregnancy. A limitation also includes when a worker is seeking health care related to pregnancy, childbirth, or a related medical condition itself.

What is a reasonable accommodation under the PWFA?

“Reasonable accommodation” is a term from the ADA, and the final rule uses a similar definition with certain additions to account for the PWFA. Generally, it means a change in the work environment or how things are usually done. As under the ADA, under the final rule an accommodation is reasonable if it is plausible or feasible. As under the ADA, under the final rule an accommodation must be effective – it must help the worker overcome the problem they are facing.

Are there any accommodations that the employer MUST provide?

Yes, these are called “predictable assessments” and allow the employee: (1) to carry or keep water near and drink, as needed; (2) additional restroom breaks, as needed; (3) to sit in jobs that typically require standing and to stand in jobs that typically require sitting, as needed; and (4) breaks to eat and drink, as needed.

Are there examples of what the PWFA considers “reasonable?”

Yes, the final rule published by the EEOC provides the following non-exhaustive list of examples:

• Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom
• Changing food or drink policies to allow a worker to have 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
• Telework
• Temporary reassignment
• Leave for appointments with health care providers
• Light duty or help with lifting or other manual labor
• Leave to recover from childbirth

Can an employer ask the eligible or qualified employee for documentation to support their need for accommodations?

Only in limited circumstances. The PWFA encourages employers to engage in the interactive process to determine appropriate accommodations. Under the final rule, an employer is not required to seek supporting documentation from an employee who seeks an accommodation. If an employer decides to seek supporting documentation, it is only permitted to do so under the final rule if it is reasonable to require documentation under the circumstances in order for the employer to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an adjustment or change at work due to the limitation. When requiring documentation is reasonable, the employer is limited to requiring documentation that itself is reasonable.

The final rule defines “reasonable documentation” as the minimum that is sufficient to: (1) confirm the physical or mental condition; (2) confirm that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with (1), “a limitation”); and 3) describe the adjustment or change at work that is needed due to the limitation. Employers are not permitted to ask for a diagnosis. The EEOC provides the following example in the final rule:

Example: Supporting documentation need not state that an employee has to attend a medical appointment related to a miscarriage, but can simply state that the employee needs to attend a medical appointment during work hours due to pregnancy, childbirth, or a related medical condition and thus needs a modified start time on a particular day; or the employee has a prohibition on lifting more than 50 pounds in connection with a condition related to pregnancy and thus needs an accommodation that eliminates the need to lift more than 50 pounds.

How does the PWFA interact with other accommodation and leave entitlements?

The PWFA runs concurrently with FMLA, ADA, state and local leave and disability accommodation laws, and employer policies. Specifically, employees may simultaneously be eligible for a leave of absence and disability accommodations. For example, an employee may take intermittent leave for a qualifying condition and also require accommodations to perform work while working. In the event an employee has protection for ongoing leave under FMLA, other leave laws, or employer leave policies, the employer should first look to these leave entitlements before providing leave as an accommodation under the PWFA.

When leave under the FMLA is exhausted, leave as an accommodation under the PWFA or ADA may extend an employee’s leave of absence. Use the following chart as a guide to determine when and how a leave entitlement or accommodation under federal law may apply. This should be viewed in conjunction with any applicable state or local law.

What if the accommodation required is not something the employer can provide or causes an undue hardship?

Employers are not required to provide a reasonable accommodation where it would cause an undue hardship. An undue hardship must cause significant difficulty or expense to the employer if provided. The burden to prove undue hardship focuses on the resources and circumstance of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Employers should consult with legal counsel before denying an accommodation due to undue hardship.

For additional leave of absence guidance and best practices, review this Leave of Absence Mangement Toolkit made for Employers.