The EEOC issued final regulations (Eff. June 18, 2024) interpreting the Pregnancy Workers Fairness Act (“PWFA”), which generally requires employers with 15+ employees to provide reasonable accommodation for pregnancy, childbirth and/or related medical conditions absent undue hardship.

It requires reasonable accommodation arrived at through the interactive process and prohibits employers from taking adverse actions in terms, conditions, or privileges of employment or retaliating against an employee because they request or use a reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions. Notable points:

  • It covers applicants and former employees
  • A “known limitation” is one that has been communicated to the employer, even if not a “disability” under ADA; “limitations” can be physical or mental and may be modest, minor or episodic
  • “Pregnancy” and “childbirth” include current and past pregnancy, potential or intended pregnancy (infertility, fertility treatment, and the use of contraception), labor, and childbirth;
  • “Related medical conditions” may include termination of pregnancy, include miscarriage, stillbirth, abortion; preterm labor; gestational diabetes; preeclampsia; chronic migraines; nausea or vomiting; anxiety, depression, or psychosis during pregnancy; and postpartum depression, anxiety, or psychosis;
  • A leave of absence is generally a reasonable accommodation if the employee is reasonably expected to be able to perform essential functions, with or without a reasonable accommodation, after leave;
  • Temporarily suspension of an essential function may be required unless it will cause undue hardship; determined by:
    1. length of time needed;
    2. whether there is work after suspension;
    3. nature and frequency of essential function(s);
    4. whether employer gave other similar employees a temporary suspension;
    5. whether others can perform or be hired to perform essential function(s); and
    6. whether essential function(s) can be postponed or remain unperformed for any length of time;
  • The following modifications are almost always reasonable — allowing an employee to:
    1. carry or keep water near and drink;
    2. take additional restroom breaks,
    3. sit or stand;
    4. take breaks to eat and drink;
  • Employer may only require documentation when reasonable. It is not reasonable:
    1. when physical or mental condition, and adjustment or change at work needed are obvious;
    2. when employer already has sufficient information
    3. when employee is pregnant and seeks one of the modifications noted above;
    4. when the requested accommodation is available to employees without known limitations without submitting supporting documentation.

The full text of the final rule can be found here: Federal Register :: Implementation of the Pregnant Workers Fairness Act