Eight months after issuing its notice of proposed rulemaking, the Equal Employment Opportunity Commission (“EEOC”) published its final rule and interpretive guidance implementing the Pregnant Workers Fairness Act (“PWFA”) on April 15, 2024. The PWFA, which became effective in June 2023, builds upon existing protections under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (“ADA”) to require covered employers to provide reasonable accommodations for qualified employees or candidates who are experiencing known limitations related to or arising out of pregnancy, childbirth, or related medical conditions. Barring successful legal challenges (more on that below), the final rule is scheduled to take effect on June 18, 2024.
The following are eight of the most frequently asked questions employers may have about the PWFA as answered by the EEOC’s final rule, codified at 29 CFR Part 1636:
FAQ 1: What is a “Covered Employer” Under the PWFA?
A1: The PWFA covers all private and public sector employers (state and local governments) with 15 or more employees, Congress and Federal agencies, employment agencies, and labor organizations.
FAQ 2: Who is a “Qualified Employee” Covered Under the PWFA?
A2: The final rule defines an “employee” to include not just current employees, but also applicants and former employees of covered employers. To be “qualified,” the employee must be able to perform the essential functions of the job, with or without reasonable accommodation. Where an employee’s inability to perform essential functions is “temporary,” they must be able to perform the essential functions “in the near future.” The final rule defines “temporary” as a limited time that is not permanent and may extend into “the near future,” or generally 40 weeks (i.e.,the length of a full-term pregnancy).
FAQ 3: What Are “Known Limitations” Relating to Pregnancy, Childbirth, or Related Medical Conditions?
A3: The final rule clarifies that the limitation is “known” where the employee, or the employee’s representative, has communicated the limitation to the employer, whether verbally or in writing. A “limitation” includes any physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or “related medical conditions.”
FAQ 4: What Conditions Are Covered Under the PWFA?
A4: The PWFA covers all physical or mental conditions “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” regardless of whether the condition meets the definition of disability under the ADA. The regulations make clear that the EEOC will interpret “related medical conditions” to include not only new physical and mental conditions, but also pre-existing conditions exacerbated by pregnancy or childbirth. Unlike the ADA, the medical conditions do not have to substantially limit life activities to support accommodation under the PWFA – the limitations can be modest, minor, and/or episodic.
The final rule provides a non-exhaustive list of pregnancy, childbirth, or related conditions that are or may be covered under the PWFA, including:
- Past, current, potential or intended pregnancies;
- Fertility and infertility treatments;
- Contraception use;
- Ectopic pregnancy;
- Pre-term labor;
- Gestational diabetes;
- Menstruation;
- Endometriosis;
- Carpal tunnel syndrome;
- High blood pressure;
- Lactation and lactation-related issues;
- Antenatal or post-partum depression, anxiety, or psychosis; and
- Termination of pregnancy, including via miscarriage, stillbirth, or abortion.
The EEOC’s inclusion of “having or choosing not to have an abortion” as a covered condition in its final rule proved to be controversial; the agency received approximately 54,000 comments in favor of exclusion of abortion-related limitations and 40,000 comments in favor of inclusion. The EEOC defended its decision to include abortion as “consistent” with the courts’ “longstanding interpretation of the same phrase in Title VII[,]” further noting that the PWFA does not require an employer to cover costs for an abortion or travel to obtain an abortion. Significantly, the final rule does not contain an express exemption for employers who object to abortion coverage on religious grounds.
Shortly after the final rule’s publication, a group of 17 Republican state attorneys general filed a lawsuit against the EEOC challenging the constitutionality of the abortion-related accommodations, citing, among other things, concerns that business owners will face federal lawsuits for failing to accommodate employees’ abortions even where abortions are illegal under state law. More recently, Louisiana and Mississippi also sued the EEOC in a lawsuit led by the states’ respective attorneys general, arguing, among other things, that the final rule conflicts with U.S. Supreme Court precedent eliminating the constitutional right to abortion, and undermines their state laws, which largely ban abortion, except in very limited circumstances.
FAQ 5: What Constitutes an “Undue Hardship” Under the PWFA?
A5: Like the ADA, the PWFA requires employers to make reasonable accommodations, except where it would cause an undue hardship. The final rule defines “undue hardship” as significant difficulty or expense for the employer. To determine whether an accommodation would pose an undue hardship, the rule incorporates factors considered under the ADA. In addition, where the accommodation would require temporary suspension of an essential function, the evaluation of whether the accommodation would cause undue hardship may also include consideration, where relevant, of:
- The length of time the employee will be unable to perform the essential function;
- The nature and frequency of the essential function;
- Whether there is work for the employee to accomplish;
- Whether the employer previously provided other employees in similar positions with temporary suspension of the essential function;
- Whether other employees or third parties can perform or be temporarily hired to perform the essential function; and
- Whether the essential function can be postponed or remain unperformed, and, if so, the length of time if can be postponed or remain unperformed.
FAQ 6: Are There Particular Accommodations That Will Be Considered Presumptively Reasonable?
A6: The final rule adds the concept of “predictable assessments,” defined as modifications that will, “in virtually all cases,” be found to be reasonable accommodations that do not impose an undue hardship when requested by an employee who is pregnant. The four categories of “predictable assessments” allow employees, as needed, to:
- Carry or keep water near and drink;
- Take additional restroom breaks;
- Stand or sit; and
- Take breaks to eat and drink.
FAQ 7: What Other Accommodation May Be Reasonable Under the PWFA?
A7: The final rule makes clear that an employer may not require its employee to accept accommodations without engaging in an interactive process with the employee. The rule provides a non-exhaustive list of potential accommodations, including:
- Longer and more frequent breaks;
- Modified food or drink policies;
- Modified work stations or equipment, to allow sitting or standing while working;
- Modified work schedules or telework;
- Modified uniform, dress codes, or safety equipment;
- Leave for medical appointments, pregnancy conditions, or recovery from childbirth; and
- Light duty or assistance with manual labor.
The final rule points out the PWFA prohibits employers from requiring an employee to take leave if another type of reasonable accommodation is available. The rule also makes clear that employers may need to provide different accommodations during the various stages of an employee’s pregnancy or after childbirth.
FAQ 8: What Documentation Can Employers Require to Support an Accommodation Request?
A8: The EEOC states that, in many instances, a simple exchange of information between the employer and employee – through conversation or email – should be sufficient for the employer to determine whether accommodation must be granted, without need for further interactive process or documentation. However, employers may request documentation when it is “reasonable” to do so under the circumstances to determine whether the employee has a covered physical or mental limitation and needs an adjustment or change at work due to this limitation. “Reasonable” also means the minimum documentation sufficient for the employer to make this determination; documentation may be sufficient where it contains a simple statement of the physical or mental condition and confirmation that it is related to pregnancy or childbirth, even in the absence of a medical diagnosis.
For example, according to the final rule, it is not reasonable for an employer to request documentation where the employee’s limitation and need for accommodation is obvious (and confirmed by the employee); the employer is already aware of the limitation and need for accommodation; the employee is currently pregnant and needs one of the predictable assessments (e.g., to take bathroom breaks, to carry water to drink, or to sit or stand where the job requires otherwise); the employee is lactating and needs breaks to pump or nurse at work; or the employer normally would not ask an employee for documentation for the requested accommodation under its existing policies or practices. And, as with other medical information, employers who obtain documentation to support the request for reasonable accommodation must keep any medical information confidential.
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As a reminder, the PWFA does not replace or supersede state or local laws providing greater protections to employees related to pregnancy, childbirth, or related medical conditions. Employers should follow the most protective law applicable to their employees. And, as a final note of caution, employers should tread carefully with employees exercising rights under the PWFA. The EEOC’s rule stipulates that the anti-retaliation provisions of the PWFA should be interpreted broadly and include:
- Denying employment opportunities based on the need for a reasonable accommodation under the PWFA;
- Taking adverse employment action against an employee for requesting a reasonable accommodation, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding; or
Coercing individuals who exercise or help others exercise their rights under the PWFA.
If you need assistance to ensure compliance with the Pregnant Workers Fairness Act, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.
