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Employers Beware:  Obligations Under PWFA Final Regulations Exceed Concept of “Reasonable Accommodation” Under ADA

On December 29, 2022, President Biden signed the Pregnant Worker Fairness Act into law with relatively little fanfare. It became effective on June 27, 2023 and requires covered employers to provide reasonable accommodations to a qualified employee’s known limitations related to, affected by or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation would impose an undue hardship on the operation of the employer’s business. Sounds familiar, right? Just include pregnancy and related medical conditions in your existing practice of accommodating disabilities under the ADA. One would think . . . but not under the new regulations.

On April 15, 2024 the EEOC issued its Final Rule implementing the PWFA. The regulations, which take effect on June 18, 2024, contain a number of requirements that will leave employers accustomed to accommodating employees with disabilities dumbfounded. Under the new regulations, accommodations that must be provided to employees with limitations due to pregnancy, childbirth or related medical conditions exceed what is currently required for employees with limitations due cancer, diabetes, back problems and other physical or mental impairments. Among them:

  • The physical or mental conditions related to pregnancy include impediments or problems that may be modest, minor or episodic. They need not rise to the level of a disability under the ADA.
  • Reasonable accommodations under the PWFA include temporary suspension of essential job functions. Under the ADA, an employee is not “qualified” if she cannot perform the essential functions of her position, with or without reasonable accommodation – which does not include excusing an employee from the performance of essential functions or assigning them to other employees. Not so under the PWFA regulations. Under the PWFA, an employee who is unable to perform an essential function due to pregnancy or a related medical condition remains “qualified” if the inability is temporary; if the essential function can be performed in the “near future” (i.e., within 40 weeks); and it can be reasonably accommodated – which may include suspending the performance of the function, assigning it to another employee or hiring another employee or a temp to perform it.
  • An employer may only request supporting documentation of the need for accommodation when it is “reasonable under the circumstances;” that is, the need for an adjustment or change at work due to a limitation from pregnancy, childbirth or a related medical condition is not “obvious” and “self-confirmed” by the employee. If it is “reasonable” to seek documentation, an employer may only request information that confirms the employee has a physical or mental condition related to pregnancy, childbirth or a related condition, and describes the adjustment or change needed due to the limitation. The employer may not require that the documentation be submitted on a specific form and it need not come from the health care provider that is actually treating the condition.

While the majority of what the new regulations require should not be novel or problematic to employers already accustomed to accommodating pregnancy, childbirth and related medical conditions, it is always the outliers that create the problems – and the above obligations represent just that.

Questions? Contact attorney Alan Seneczko at or (262) 560-9696.

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