April 22, 2024

The EEOC’s Final Rule and Guidance on the Pregnant Workers Fairness Act – What Employers Need to Know

What is the PWFA? 

The Pregnant Workers Fairness Act (“PWFA’”) went into effect in June 2023 as a supplement to existing federal anti-discrimination laws. In short, the PWFA was enacted to “fill the gaps” in federal protections for pregnant workers and requires covered employers to provide reasonable accommodations to a qualified employee’s (or applicant’s) “known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity.” The law also prevents retaliation against employees who engage in any protected activity under the PWFA.  

After passing the PWFA, Congress directed the Equal Employment Opportunity Commission (“EEOC”) to implement regulations and provide examples of reasonable accommodations. Previously, on August 11, 2023, the Commission issued its proposed PWFA regulations and subsequently received over 100,000 public comments on the scope of the proposed definitions of “pregnancy, childbirth, or related medical conditions.” 

On April 15, 2024, the EEOC released the text of the final regulations, which remains mostly unchanged from the controversial proposed rule. On April 19, 2024, the EEOC’s 408-page final rule and interpretive guidance implementing the PWFA was published in the Federal Register and is set to take effect 60 days later on June 18, 2024. This blog will highlight four key takeaways of the final rule employers need to know. 

How is the PWFA different from existing federal laws that already protect employees impacted by pregnancy or childbirth? 

First and foremost, the PWFA applies only to accommodations. The PWFA does not replace federal, state, or local laws that make it illegal to fire or discriminate against employees or applicants based on pregnancy, childbirth, or related medical conditions. These laws, such as the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) providing protections to employees affected by pregnancy and childbirth are not nearly as expansive as the PWFA protections.  

Contrary to the PWFA, the FMLA ensures that workers receive protected unpaid leave related to pregnancy and childbirth but does not require that employers provide accommodations. Title VII prohibits discrimination against individuals because they are pregnant, but it does not affirmatively require employers to accommodate pregnancy or childbirth-related conditions. In addition, when considering the Americans with Disabilities Act (“ADA”), workers are only entitled to accommodations if they have a pregnancy-related disability. However, pregnancy itself is not considered a disability under the ADA.  

Unlike the FMLA, Title VII, and the ADA, the PWFA provides reasonable accommodations for qualified applicants or employees with known limitations. Under the PWFA, “limitations” are defined as physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Further, the PWFA prohibits retaliation against employees for seeking or taking a reasonable accommodation based on their pregnancy, childbirth, or related medical conditions.  

In other words, under the PWFA, an employee cannot deny a job or other employment opportunities to a qualified employee or applicant based on their need for reasonable accommodation. In addition, employers are prohibited from retaliating against employees for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation).  

The EEOC’s Final Rule – Key Takeaways 

Controversial Coverage & Daring Definitions 

According to the EEOC’s final rule, the definition of “pregnancy” and “childbirth” includes, but is not limited to, current pregnancy, past pregnancy, potential pregnancy, use of contraception, menstruation, infertility, and fertility treatments. 

The term “related medical conditions” continues to be defined as conditions “related to, are affected by, or arise out of pregnancy or childbirth.” The regulations provide the following non-exhaustive list of examples: termination of pregnancy, including by miscarriage, stillbirth, or abortion; lactation and conditions related to lactation; menstruation; postpartum depression, anxiety or psychosis; vaginal bleeding; preeclampsia; pelvic prolapse; preterm labor; ectopic pregnancy; gestational diabetes; cesarean or perineal wound infection; maternal cardiometabolic disease; endometriosis; changes in hormone levels; and many other conditions. 

The final regulations also reference related medical conditions that are not unique to pregnancy or childbirth, such as chronic migraine headaches, nausea or vomiting, high blood pressure, incontinence, carpal tunnel syndrome, and many other medical conditions. These conditions are covered by the PWFA only if the condition relates to pregnancy or childbirth or is exacerbated by pregnancy or childbirth. However, the ADA or other civil rights statutes may apply.  

Qualified Employees 

An applicant or employee can establish they are a “qualified” individual under the PWFA in the same manner as under the ADA in that “an employee…who, with or without reasonable accommodation, can perform the essential functions” of the job is qualified.  

When Congress passed the PWFA, it also included the definition of a “qualified employee” as “an employee (or applicant) cannot perform all essential job functions even with reasonable accommodation, the employee can be qualified for accommodations under the PWFA if: (a) the inability to perform an essential job function is for a temporary period; (b) the essential job function(s) could be performed in the near future; and (c) the inability to perform the essential function(s) can be reasonably accommodated. The Act, however, does not define “temporary” or “in the near future.” 

The final rule defines “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” The final rule further defines “in the near future” as “generally forty weeks from the start of the temporary suspension of an essential function.” Here, the final rule differs from the proposed rule in that the 40-week period applies when the condition for which an accommodation is being sought relates to a current pregnancy. According to the EEOC, it is necessary to tie the definition of “in the near future” to the typical length of a full-term pregnancy.  

In the final rule, the EEOC does not define “in the near future” for childbirth or related medical conditions, leaving this to be determined on a case-by-case basis and noting only that “in the near future” does not mean indefinitely.  The final regulations explain that employers should consider whether an employee can perform the essential functions “in the near future” each time an employee asks for an accommodation that requires suspension of an essential job function.  

Employers must tread carefully when evaluating accommodation requests under the PWFA framework, as it differs from the well-known ADA framework. Under the ADA, an employee is not considered “qualified” if the employee is unable to perform essential functions of a job with or without accommodation. However, under the PWFA, “qualified” employees may seek a temporary suspension of an essential job function if that person is or is expected to be able to perform the essential duties in the near future and the employer can reasonably accommodate the employee’s inability to perform that function without undue hardship. Simply put, whether an employee is “qualified” under the PWFA will require a fact-sensitive evaluation regarding whether the temporary suspension of essential job functions can be reasonably accommodated by the employer.  

Reasonably Reasonable Accommodations 

The accommodation process prescribed by the PWFA bears similarity to the familiar process for providing reasonable accommodations under the ADA, except for temporarily excusing or eliminating the performance of an essential job function. Otherwise, the rule provides that a reasonable accommodation is a modification or adjustment that is “reasonable on its face, i.e., ordinarily or in the run of cases” if it appears to be “feasible” or “plausible.” 

 For example, under the PWFA, employers must make reasonable accommodations for “known limitations” of an employee or applicant unless the accommodation would cause an undue hardship on the employer. A “limitation” is defined as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions of the specific employee in question.” The condition may be “modest, minor, and/or episodic and does not need to meet the definition of “disability” under the ADA.  

A limitation becomes “known” to the employer when an employee has communicated the limitation to the employer. An employee representative can also communicate the limitation to someone in a supervisory role or who regularly directs the employee’s work (or the equivalent in the case of an applicant), human resources, or by following the steps in the employee’s policy for requesting accommodations. The final regulations include examples of requests that may be reasonable. These include schedule changes due to morning sickness or to treat medical issues following delivery, adjustments to accommodate restrictions for lifting or requests for light duty, time and/or space to pump or nurse during work hours, or time off to recover from childbirth. 

Not so Diligent Documentation  

The EEOC encourages employers and employees to communicate openly about accommodation needs under the PWFA and discourages employers from seeking documentation simply to establish a pregnancy. According to the final rule, an employer may only request the “minimum documentation” necessary to confirm the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and describe the adjustment or change at work due to the limitation. However, when an employee’s pregnancy is obvious or known and includes self-confirmation of the pregnancy by the employee, the PWFA Regulations suggest that the employer should not request supporting documentation before engaging in the interactive process.  

Further, the final rules clearly delineate circumstances where it is not reasonable for an employee to seek supporting documentation—including when:  

(1) The limitation and adjustment or change needed is obvious, and the employee provides self-confirmation;  

(2) The employer has sufficient information to determine whether the employee has a qualifying limitation and needs an adjustment or change due to the limitation;  

(3) When the request is one of the four “predictable assessment” accommodations;  

(4) When the request is for a lactation accommodation; and  

(5) When employees without known limitations under the PWFA receive the requested modification under the employer’s policy or practice without submitting supporting documentation.  

In the interpretive guidance accompanying the final rule, the EEOC notes that employers may ask for the expected duration of the requested accommodation. The final rule notes that requests for more information than permitted may violate the PWFA’s prohibition on retaliation, and that employers may not require supporting documentation to be submitted on a specific form.  

What should Employers do? 

In anticipation of the final rule taking effect on June 18, 2024, Employers must prepare and position their organizations for compliance with the PWFA. Given the broad scope of the PWFA, employers must train HR departments on the final rule and regulations, ensure that all policies and procedures regarding accommodations under the PWFA are included therein, and become familiar with the interpretive guidance’s examples of reasonable accommodation to understand their obligations under the PWFA better.  

For any questions about the PWFA and the implications of the final regulations on your organization, just #TalkToTalya.  

At Kelley Kronenberg, our Labor and Employment Law Division stands ready to walk employers through every change in the law and will help you manage the inevitable implications they bring.  

Interested in reading more blog posts by the attorneys in our Labor and Employment Law Division? Click here: https://www.kelleykronenberg.com/category/blog/labor-employment/  

Talya Haas, Esq.
Attorney, Labor & Employment
Kelley Kronenberg-Fort Lauderdale, FL.
(954) 370-9970
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