The Equal Employment Opportunity Commission’s (EEOC) final Pregnant Workers Fairness Act (PWFA) regulations went into effect on June 18, 2024. The regulations are full of essential information that covered employers need to know to ensure PWFA compliance. Don’t worry—you do not have to read the EEOC’s 400+ page final rule and interpretive guidance! We did that for you and summarized some of the highlights below.

Before we dive into that, I want to give you a quick refresher on the PWFA. The PWFA went into effect on June 27, 2023. It requires employers with at least 15 employees to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause undue hardship on the operation of the employer’s business.

Now let’s get into the highlights of the final regulations.

1. The phrase “pregnancy, childbirth or related medical conditions” has a very broad definition. Examples of circumstances that fall within the definition includes, but are not limited to:
   1. Current, past, and potential pregnancy;
   2. Infertility or fertility treatment;
   3. The use of contraception;
   4. Termination of pregnancy, including via miscarriage, stillbirth, or abortion;
   5. Pregnancy-related sickness, such as nausea, vomiting, edema, and preeclampsia;
   6. Lactation or issues associated with lactation; and
   7. Menstruation.

2. Many employees will qualify for protection under the PWFA. The PWFA is much broader than the Americans with Disabilities Act (ADA), which opens the door for many more employees and applicants to be qualified under the PWFA. An employee or applicant is qualified if they can perform the essential functions of the position, with or without reasonable accommodation. That sounds just like the ADA, doesn’t it? However, unlike the ADA, someone can still be qualified under the PWFA even if they have an inability to perform the essential functions of the position—as long as the inability is temporary and the essential function can be performed in the near future. “Temporary” means for a limited time, not permanent. “In the near future” generally means within 40 weeks from the start of the temporary suspension of an essential function. Ultimately, whether an employee or applicant is qualified will involve a fact-specific evaluation.

3. The following is a non-exhaustive list of reasonable accommodation examples:
   1. Job restructuring;
   2. Part-time or modified work schedule;
   3. Frequent breaks for use of the restroom, drinking, eating, and/or resting;
   4. Acquiring or modifying equipment, uniforms, or devices;
   5. Allowing sitting or standing (and providing means to do so);
   6. Light duty;
   7. Telework or remote work;
   8. Providing a reserved parking space; and
   9. Temporarily suspending one or more essential function.

4. Reasonable accommodations for lactation may exceed what is required under the Providing Urgent Maternal Protection for Nursing Mothers Act (PUMP Act). The PUMP Act requires reasonable break time and a private, non-restroom space shielded from view and free from intrusion for a nursing mother to express breast milk. The PWFA, on the other hand, provides a non-exhaustive list of accommodation examples related to lactation that go beyond what the PUMP Act requires. For example, an accommodation under the PWFA may be to provide a space for pumping that is within reasonable proximity to a sink, running water, and refrigeration for storing milk. Additionally, nursing during working hours (as distinct from pumping) may be a reasonable accommodation under the PWFA. Accommodations for nursing mothers during work hours address situations where the employee and child are in close proximity in the normal course of business, such as when the employee works from home or when the employer offers on-site daycare.

5. Undue hardship under the PWFA has the same meaning as undue hardship under the ADA. An employer does not have to provide a certain accommodation if it can show that said accommodation will create an undue hardship. Undue hardship, however, must be based on an individualized assessment of current circumstances that show that an accommodation would cause significant difficulty or expense. As such, the undue hardship analysis will vary on a case-by-case basis.

Of course, it would be difficult to share all of the information found in the PWFA’s final regulations in this one blog post. However, the aforementioned highlights are a good start to help you ensure compliance.

To take it a step further with real, practical guidance, Miller Johnson has a tool kit and training video available. It provides employers with real, practical guidance about the Act and a toolkit that includes: a reference guide; sample policy; sample medical forms; and tools for employers to use to navigate the interactive process, evaluate whether a potential accommodation presents an undue hardship, and analyze requests in light of the varying requirements under the ADA, PWFA, FMLA, and PUMP! Purchase the PWFA Toolkit and video here for $250 or the PWFA Toolkit only here for $150.

If you have questions about the PWFA, please contact Breanne Gilliam or one of our PWFA Workshop presenting attorneys.