What To Expect... From The New Pregnant Workers Fairness Act Regulations

The Pregnant Workers Fairness Act (PWFA) regulations issued by the EEOC become effective on June 18, 2024. Passed in 2023, the PWFA is a federal law that mandates employers provide reasonable accommodations for pregnancy, childbirth, or related medical conditions. However, many states already require employers to provide accommodations and leave for pregnancy, such as Washington and Oregon. Read on to learn more about how employers in these states should coordinate federal and state laws regulating pregnancy.

What Employers Should Know About the Federal PWFA

The Pregnant Workers Fairness Act requires employers with at least 15 employees to provide reasonable accommodations to an employee's known limitations related to pregnancy, childbirth, or related medical conditions. Like the federal Americans with Disabilities Act (ADA), the PWFA requires an interactive process and provides an undue hardship defense in most but not all circumstances. 

Unlike the ADA, however, the PWFA rules declare certain modifications are reasonable as a matter of law “in virtually all cases,” and should only be reviewed under a “predictable assessment.” In such cases, the individualized assessments of requests for these modifications should be “predictable,” and employers should have a streamlined approach to evaluating the requests. The regulations also state that it is “not reasonable” for an employer to request supporting documentation from an employee requesting one of these accommodations if the employee provides “self confirmation” confirming the employee's limitation and the adjustment or change needed due to the limitation. The regulations state that the following accommodations should be subject to “predictable assessments:” 

• Allowing an employee to carry or keep water near and drink as needed;
   
• Allowing an employee to take additional restroom breaks, as needed;
   
• Allowing an employee whose work requires standing to sit and whose work requires sitting to stand as needed; and
   
• Allowing an employee to take breaks to eat and drink as needed.

Perhaps most significantly, under the PWFA, pregnant employees can receive an accommodation even if they are unable to perform essential functions of the job if the inability to perform those functions is for a temporary period, the function can be performed in the near future, and the inability can be reasonably accommodated. 

“In the near future” is a term of art. For a current pregnancy, “in the near future” means 40 weeks from the temporary suspension of an essential function. For conditions other than a current pregnancy, the regulations state that the determination should be made on a case-by-case basis, and do not specify a specific time for “in the near future.”

The PWFA also prohibits the following employer actions: 

• Requiring an employee to accept an accommodation without utilizing the interactive process to arrive at a reasonable accommodation; 
   
• Denying employment opportunities to a qualified employee or applicant based on the entity's need to make a reasonable accommodation for the employee or applicant; 
   
• Requiring an employee to take leave if another effective reasonable accommodation can be provided that would let the employee keep working (absent undue hardship); 
   
• Taking an adverse action against a qualified employee because the employee has requested or used a reasonable accommodation; 
   
• Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); and 
   
• Interfering with any individual's rights under the PWFA.

A group of 17 states have filed a lawsuit in federal court challenging the EEOC's regulation for inclusion of abortion as a “related medical condition.” These states have asked the federal court to enjoin the implementation of the regulation pending the court's ruling. This lawsuit could impact enforceability of the PWFA regulations, so employers should stay tuned.

What Employers Should Know About the Federal PUMP Act

Employers should also be familiar with the federal Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, which again may differ from state law protections.

• Under the PUMP Act, employers must provide nursing parents with reasonable break time, as frequently as needed, to express breast milk for up to one year after the birth of a child.
   
• Employers must provide a place at work, other than a bathroom, shielded from view and free from intrusion by coworkers and the public.
   
• The law applies to both hourly and salaried employees, and break time may be compensable if the employee is performing work simultaneously with pumping.
   
• More information about the PUMP Act is available on the federal Department of Labor's website.

What Employers Should Know About Washington's Healthy Starts Act

Under the Washington Healthy Starts Act, employers with 15 or more employees must provide reasonable accommodations for an employee's pregnancy or pregnancy-related health conditions, including the need to express breast milk. An employer must give “reasonable consideration” to requests for pregnancy-related accommodations, and may only deny a reasonable accommodation request if it can demonstrate that so doing would impose an undue hardship on the employer's business. Undue hardship is defined as ”an action requiring significant difficulty or expense.”

An employer may not  assert an undue hardship defense if an employee asks for one of the following reasonable accommodations:

• Providing more frequent, longer, or flexible restroom breaks;
   
• Modifying a no food or drink policy;
   
• Providing seating or allowing the employee to sit more frequently if the job requires standing; and
   
• Limiting lifting to no more than 17 pounds.

Similar to accommodating an employee's disability, an employer may request that the employee provide written certification from the employee's treating health care professional regarding the need for reasonable accommodation. However, employers cannot make such requests for the accommodations listed above, or for a request for break time for expressing breast milk.

Other examples of reasonable accommodations under the Healthy Starts Act include:

• Providing for a temporary transfer to a less strenuous or less hazardous position; and
   
• Providing reasonable break time for an employee to express breast milk for two years after the child's birth in a private location other than a bathroom.

Additionally, the Healthy Starts Act states that it is an unfair practice for any employer to:

• Fail or refuse to make reasonable accommodation for an employee for pregnancy unless the employer can demonstrate that doing so would impose an undue hardship; 
   
• Take adverse action that affects the terms, conditions, or privileges against an employee who requests, declines, or uses an accommodation; 
   
• Deny employment opportunities if such denial is based on the employer's need to make reasonable accommodation required by the Act; and 
   
• Require an employee to take leave if another reasonable accommodation can be provided.

Finally, the Act requires the Washington Department of Labor and Industries to provide  online education materials on its website.

What Employers Should Know About Oregon's Employer Accommodation for Pregnancy Act 

For employers with six or more employees, Oregon's Employer Accommodation for Pregnancy Act states that reasonable accommodations include, but are not limited to:

• Acquisition or modification of equipment or devices;
   
• More frequent or longer break periods or periodic rest;
   
• Assistance with manual labor; and
   
• Modification of work schedules or job assignments.

Oregon law also provides for an undue hardship exception and states that a reasonable accommodation imposes an undue hardship on the operation of the business of an employer if the accommodation requires significant difficulty or expense. Unlike Washington's Healthy Starts Act, Oregon employers may assert the undue hardship for any requested accommodation. 

Oregon's Act states that it is unfair practice for an employer to do any of the following to an applicant or employee because of known limitations related to pregnancy, childbirth, or a related medical condition, including but not limited to lactation: 

• Deny employment opportunities if the denial is based on the need of the employer to make reasonable accommodations; 
   
• Fail or refuse to make reasonable accommodations unless the employer can demonstrate an undue hardship; 
   
• Take an adverse employment action or discriminate or retaliate with respect to a term or condition of employment because the applicant or employee has inquired about, requested, or used a reasonable accommodation; 
   
• Require an applicant or employee to accept a reasonable accommodation unnecessary to perform the essential duties of the job or accept a reasonable accommodation if there is no known limitation; and 
   
• Require an employee to take family leave if the employer can make reasonable accommodations.

The Oregon Act also imposes a notice requirement. An employer must post signs in a conspicuous place informing employees of the protections provided by the Act. An employer must also provide a written copy of the notice to a new employee at the time of hire, to existing employees within 180 days after January 1, 2020, and to an employee who informs the employer of the employee's pregnancy within 10 days after the employer receives the information. The Act also directs the Bureau of Labor and Industries to  develop training and education materials.

What Employers Should Know About the Oregon Breast Milk Law

The Oregon Breast Milk Law mandates the following:

• An employer must provide reasonable unpaid rest periods for an employee needing to express breast milk until the employee's child is 18 months old.
   
• An employer shall make reasonable efforts to provide a location, other than a public restroom or toilet stall, in close proximity to the employee's work area for the employee to express milk in private.

However, an employer with 10 or fewer employees is not required to provide rest periods if doing so would impose an undue hardship on the operation of the employer's business.

Which Law Should Washington and Oregon Employers Follow?

Generally, when federal and state laws address the same issue, the law that provides the greater protection to employees will govern. Washington and Oregon were at the forefront of providing accommodations and protections to pregnant workers, but with the advent of the PWFA and the new enforcement provisions of the PUMP Act, employers operating in these two states should keep the following requirements of these federal laws in mind:

• The PWFA prohibits an employer from requiring an employee to accept an accommodation without a discussion between the worker and the employer about the accommodation. Employers should be familiar with this concept because it is similar to the interactive process that must occur when disability accommodation is requested.
   
• Unlike the ADA interactive process, the PWFA requires  employers to temporarily excuse employees from performing essential functions of a job if the essential functions could be performed “in the near future.” For pregnancy, “in the near future” presumptively means 40 weeks. For other pregnancy-related conditions, ”in the near future” is a fact-specific inquiry that will vary depending on the employee's condition and the job functions.
   
• The PUMP Act allows for paid breaks to express breast milk if the employee is performing work simultaneously while pumping, though the Act does not appear to require employers to allow working while pumping.
   
• The PWFA regulation's “predictable assessments” requirement means employers must grant certain accommodations without requesting medical certification and “in virtually all cases” without relying on undue hardship. Employers operating in Oregon who have relied on the undue hardship defense will no longer be able to do so in these situations.
   
• The PWFA's “predictable assessments” also require granting the accommodation of standing if the employee usually sits, and additional breaks as needed to eat and drink. These presumptively reasonable accommodations go beyond those included under the Washington Healthy Starts Act.

What Should Employers Do Now?

• Employers operating in states without specific pregnancy accommodation laws should review handbooks to comply with the PWFA and the PUMP Act.
   
• Employers operating in states with pregnancy accommodation laws, such as Washington and Oregon, should review and update accommodation and leave policies and practices to ensure that the policies comply with the most employee-protective law.
   
• Be prepared to think expansively about what may qualify as a “pregnancy-related medical condition” and how employees can be reasonably accommodated.
   
• Train managers and human resource employees to be flexible, interactive, and reasonable in accommodating the needs of pregnant employees and those employees with pregnancy-related conditions, and be open to possible applications of the law. For example, it is possible that men may be entitled to accommodations for certain pregnancy-related conditions (e.g., infertility-related procedures).
   
• Remember that “undue hardship” can only be used in limited circumstances to deny an accommodation request, and may require a predictable assessment inquiry.
   
• Remember that requesting supporting medical documentation is permitted only in limited circumstances under the PWFA and Washington law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.