The EEOC released additional guidance to employers on implementing the Pregnant Workers Fairness Act (PWFA).
The PWFA has been in effect since June 2023, requiring employers with 15+ employees to make reasonable accommodations for limitations relating to pregnancy, childbirth, or related medical conditions. To assist employers with compliance with the PWFA, the EEOC has issued a final rule to provide more clarity on its requirements, including several key updates:
- The EEOC continues to take a broad view of qualifying “pregnancy, childbirth, or related medical conditions” to include circumstances such as current pregnancy, past pregnancy, potential pregnancy, lactation, use of contraception, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or abortion. Covered physical and mental conditions may be new, or may be pre-existing conditions impacted by pregnancy.
- There is no requirement for conditions to meet a specific level of severity, and employees may make requests for modest, minor, or episodic conditions.
- Temporary job function suspensions may last up to 40 weeks for current pregnancies, while length may be determined on an individual basis for childbirth and related medical conditions.
- Notice of need for accommodation can be written or verbal, in plain language, and from representatives (including union representatives). Once the employee specified their limitation and need for accommodation, employers are obligated to engage and are encouraged to respond promptly with interim accommodations.
- The EEOC also specifies four accommodations deemed de facto reasonable, referring to these as “predictable assessments.” It will be generally assumed that these four accommodations will not impose undue hardship, but employers may show in an individual case if the accommodation creates an undue hardship.
- Allowing an employee to carry or keep water and drink, as needed, in or nearby 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 vice versa, as needed; and
- Allowing an employee to take breaks, as needed, to eat and drink.
- Employers may only request substantiating documentation under reasonable circumstances to confirm qualifying conditions and needs for accommodations and are prohibited from requesting documents for obvious or known limitations, predictable assessments, or lactation accommodations. When similar modifications are already standard practice through the employer’s policy, an employee may self-confirm their limitation rather than providing documentation.
- Employers are prohibited from failing to provide reasonable accommodations, requiring employees to accept accommodations, denying equal employment opportunities, requiring leave over reasonable accommodations, and retaliating against reasonable accommodation requests.
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