EEOC Final Rule Implementing the Pregnant Workers Fairness Act

On April 19, 2024, the U.S. Equal Employment Opportunity Commission (EEOC or the “Commission”) published its final rule (“Final Rule”) and interpretive guidance to implement the  Pregnant Workers Fairness Act (PWFA). The Final Rule will take effect on June 18, 2024.

Although the PWFA borrows language and concepts that employers are already familiar with from existing federal protections, the Commission’s proposed rule to implement the PWFA (“Proposed Rule”), issued in August 2023, emphasized that the PWFA’s protections are broader and intended to cover conditions that do not fall under the purview of existing federal protections. After receiving and considering approximately 100,000 public comments regarding its Proposed Rule, the Commission included some notable changes in the Final Rule to clarify some distinctions between the PWFA and other federal civil rights laws, such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (Title VII). Below are key takeaways from the Final Rule and notable differences from the Proposed Rule.

Reasonable Accommodations and Temporary Suspension of Essential Job Functions

Under the PWFA, as discussed in more depth here, covered entities must reasonably accommodate qualified employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would impose an undue hardship. To determine whether an accommodation poses an undue hardship, employers must engage in the familiar interactive process required under the ADA to determine whether a reasonable accommodation exists that would enable the employee to perform the essential functions of their position.

The PWFA‘s definition of “qualified,” however, is broader than the ADA’s definition. The PWFA provides that an employee who cannot perform an essential function is considered “qualified” if (1) the inability to perform the essential function is for a temporary period; (2) the employee will be able to perform the essential function in the near future; and (3) the employer can reasonably accommodate the employee’s inability to perform the essential function.

As in the Proposed Rule, the term “temporary” is defined by the Final Rule as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” Under the Proposed Rule, however, the Commission defined “in the near future” as meaning generally 40 weeks from the start of the temporary suspension of the employee’s essential job function(s) and specified that “the forty weeks would restart once the pregnancy is over and the worker returns to work after leave could be applied during pregnancy.” This effectively rendered the suspension of an employee’s essential job function as “temporary” (i.e., not permanent) for purposes of the PWFA if the suspension did not last longer than 40 weeks before childbirth and 40 weeks after an employee returns from leave to recover from childbirth.

In response to comments, the Commission revised its definition of “in the near future” in the Final Rule to allow employers to determine whether the suspension of an essential job function is “temporary” on a case-by-case basis. During a current pregnancy, “it is presumed that the employee could perform the essential function(s) in the near future because they could perform the essential function(s) within generally 40 weeks of its suspension.” For accommodations sought regarding a post-childbirth condition, however, there is no presumed time period that renders a suspension temporary because, “unlike a current pregnancy, there is not a consistent measure of how long these diverse conditions can generally last, and thus, what ‘in the near future’ might mean in different instances.”

Leave as an Accommodation

Although leave may be considered a reasonable accommodation under the PWFA, the Proposed Rule and the Final Rule emphasize that an employer can only choose leave as a reasonable accommodation if the employee requests leave or there is no other reasonable accommodation that can be provided absent undue hardship.

Further, if an employee requests leave due to a pregnancy-related limitation, the employer must first determine whether the employee has a right to leave under the employer’s policy, the FMLA, and/or another state or local laws, as the employee is entitled to use of that leave regardless of whether the employee requests leave as a reasonable accommodation under the PWFA. If an employee requires leave beyond what they are entitled to under those laws or policies, the request for additional leave constitutes a request for a reasonable accommodation, necessitating an undue hardship analysis.

The Commission also encourages employers to grant accommodation requests on an interim basis as needed. Interim reasonable accommodations can be provided when the interactive process is ongoing and more information is needed, there are delays in providing the accommodation, or the employer’s decision on the accommodation request is pending. Although the Final Rule does not require employers to provide interim accommodations during the pendency of the interactive process, the Commission emphasizes that employers should not default to putting an employee on leave while the interactive process is underway.

Abortion

Like the Proposed Rule, the Final Rule includes abortion within its definition of “pregnancy, childbirth, or related medical conditions.” According to the EEOC, it received approximately 40,000 comments supporting the inclusion of abortion within the definition, versus about 54,000 comments urging a contrary result. In response to all comments, the EEOC observed that the inclusion of “abortion” within the definition of “pregnancy, childbirth, or related medical conditions” is “consistent with the Commission’s and courts’ longstanding interpretation of the same phrase in Title VII” and that “the PWFA is a workplace anti-discrimination law, . . . [which] does not regulate the provision of abortion services or affect whether and under what circumstances an abortion should be permitted.” 

The EEOC further noted that “the type of accommodation that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or for recovery.” The EEOC clarified that the PWFA does not require employers to provide or pay for abortions and travel-related expenses, and that abortion-related leave under the PWFA can be unpaid unless the employer’s policy states otherwise.

Given that the Final Rule includes abortion within the definition of “pregnancy, childbirth, or related medical conditions,” it is prudent to observe that some state and local laws prohibit assistance to those obtaining abortions. Employers faced with a request for an abortion-related accommodation should be aware of these laws, which could affect whether granting the accommodation could pose an undue hardship.

Requests for Documentation

Under the Final Rule, employers may only obtain medical documentation if it is reasonable under the circumstances to determine whether the employee has a qualifying condition and needs a change or adjustment at work due to a limitation. Employers can only request the minimum reasonable documentation that is sufficient to confirm the physical or mental condition that underlies the employee’s limitation. The reasonable documentation must state that the adjustment or change is necessary because of the limitation.

Reasonable documentation can only be requested in circumstances affected by, or arising out of pregnancy, childbirth, or related medical conditions. Employers are prohibited from seeking documentation when the limitation and need for a reasonable accommodation is obvious or when the employer already has sufficient information to support a known limitation related to pregnancy.

Further, employers are prohibited from seeking documentation when the request is for a “predictable assessment” accommodation. The EEOC has indicated that there are four “predictable assessments” which are de facto reasonable as they are commonly requested and typically require modest and minor alterations in the workplace: (1) allowing an employee to carry and drink water all day; (2) allowing the employee to take additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee breaks, as needed, to eat and drink. Such accommodations are usually requested on a temporary basis and presumed not to impose an undue hardship on employers. However, employers may show that such accommodations do impose an undue hardship in specific cases.

Employers are also prohibited from seeking documentation when the request is for a lactation accommodation. While the Proposed Rule stated that a self-attestation could be requested for a lactation- or pumping-related accommodation, the Final Rule does not allow employers to seek documentation when an employee is seeking an accommodation related to pumping at work. Under the Final Rule, a reasonable accommodation related to lactation can allow employees to nurse during work hours where the child is near the employee. Employers are permitted under the Final Rule to seek documentation when an employee is seeking to fully work remotely because of difficulty pumping at the workplace. As discussed here, the PWFA acts in tandem with the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, which amended the Fair Labor Standards Act to mandate that, unless an employer is specifically exempted under the law, the employer must provide reasonable break time to allow an employee to express breast milk, and must permit the employee to do so in a reasonably private location other than a bathroom.

Janae Barrett, a Law Clerk - Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this article.