Gavel to Gavel: Increased employer obligations for accommodating pregnant employees

A pregnant woman standing over her office desk with a pen and paper in hand

Just last week, the Equal Employment Opportunity Commission’s final rule interpreting the Pregnant Workers Fairness Act went into effect.

And while the law, which went into effect last June, and its regulations share some similar language with that of the Americans with Disabilities Act, employers should be aware that it goes even further in providing accommodations to pregnant employees.

The PWFA requires covered employers – generally, those with 15 or more employees – to provide reasonable accommodations to qualified employees or applicants when an individual has known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. An employer may avoid this obligation if it can show that such an accommodation would cause an undue hardship.

At first glance, this requirement and standard will likely look familiar to savvy HR professionals who are familiar with the ADA. However, a closer review reveals the new regulations require more from an employer for pregnancy accommodations. Principally, there is now potentially an obligation to temporarily suspend essential job functions for a pregnant individual. Under the ADA, a qualified individual is one that meets the requirements of the position and can perform the essential functions of the role with or without reasonable accommodation. In other words, the individual must be able to complete the major tasks required of the position once a reasonable accommodation is in place.

The PWFA borrows that same definition from the ADA; however, it also includes a broader, second definition of a qualified individual. An employee or applicant is “qualified” even if they cannot perform one or more essential functions of the job, so long as the inability to perform the essential function(s) is “temporary,” the employee could perform the essential function(s) “in the near future,” and the inability to perform the essential function(s) can be reasonably accommodated. As such, there may be an obligation to continue employing individuals who cannot perform their job, if that restriction is not permanent. This is, of course, is a significant sea change from the ADA’s standard for pregnancy accommodations.

For any accommodation requirement to arise, the need and limitation must be known by the employer. The rule interprets this to mean “the employee or the employee’s representative has communicated the limitation to the employer.” There is an initial burden on the employee to make their employer aware of any pregnancy-related limitation. Nonetheless, these limitations can be modest, minor, or episodic, and they do not need to meet the definition of a disability under the ADA.

Employers should analyze the newly released regulations and review their own processes for dealing with pregnant workers.

This article appeared in the June 28, 2024, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.