Final PWFA rules: 5 things employers need to know
The new final rule implementing the Pregnant Workers Fairness Act (PWFA) becomes effective June 18, 2024. Employers had to comply with the law June 27, 2023. Now that the final rules are out, employers need to be aware of certain provisions, as more employees will likely be asking for accommodations.
In very general terms, the PWFA requires employers to provide a reasonable accommodation to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.
5 things employers need to know:
1. Who are considered “qualified” employees and applicants?
Like the federal Americans with Disabilities Act (ADA), employees (and applicants) must be qualified to be protected. The PWFA, however, goes further. Under the PWFA, employees are considered qualified if they:
- Can perform — with or without reasonable accommodations — the job’s essential functions (like ADA); or
- Cannot perform the essential functions of the job with or without a reasonable accommodation, as long as:
- The inability is “temporary;”
- The employee could perform the functions “in the near future;” and
- The inability to perform the essential functions can be reasonably accommodated.
This means that employers might have to suspend an essential function for a time. This could include giving employees leave.
The concept of “in the near future” for pregnant employees is up to 40 weeks from the start of the suspension. For other conditions, “in the near future” depending upon the situation.
2. What’s a legitimate limitation?
Unlike an ADA disability, a PWFA limitation can be modest, minor, and/or episodic. It need not substantially limit a major life activity.
3. How must employees communicate about their limitations?
Employees or their representative should tell a manager, supervisor, HR personnel, etc. that they have a limitation and that they need an adjustment or change in their working conditions due to the limitation. This doesn’t need to be in a specific format and may be verbal.
If employers have a process to confirm what was said in the initial request and that process uses a form, the form should be a simple one that does not deter the employee from making the request and does not delay the accommodation.
4. Are there any hard and fast accepted accommodations?
If employees request one or more of the following accommodations, employers should provide it promptly and not ask for documentation:
- Allowing employees to carry or keep water near and drink, as needed;
- Allowing employees to take more restroom breaks, as needed;
- Allowing employees whose work requires standing to sit and whose work requires sitting to stand, as needed; and
- Allowing employees to take breaks to eat and drink, as needed.
Other accommodations will depend upon the employee’s limitations in relation to the job’s essential functions.
5. What kinds of documentation may employers ask for?
Employers may only ask for minimum documentation and only when reasonable. If the documentation confirms a limitation and describes the workplace change requested, that’s enough. Employees may self-confirm their pregnancy.
Documentation is also not reasonable if:
- The limitation and need for an adjustment or change at work due to the limitation is obvious.
- The employer already knows about the limitation and the adjustment or change at work due to the limitation.
- The employee is lactating and needs modifications to pump at work or nurse during work hours.
Key to remember: Expect more requests for accommodations, and not just from pregnant employees. Training supervisors can help avoid violations.
