EEOC publishes final rule implementing the Pregnant Workers Fairness Act

The EEOC recently released its final rule implementing the Pregnant Workers Fairness Act (PWFA), which took effect on June 27, 2023. The final rule, which explains the PWFA in more detail and gives additional guidance to workers and employers about the accommodation process, is set to take effect on June 18, 2024. 

The final rule already has drawn legal challenges. On April 25, 2024, a group of 17 state attorneys general filed a lawsuit to invalidate both the abortion accommodation requirement and the final rule in its entirety on constitutional and other grounds. 

While legal challenges play out, employers are encouraged to consider the implications of the new rule and prepare to make any necessary changes to policies and training related to pregnancy and accommodations. 

PWFA background  

PWFA requires all private employers with 15 or more employees to provide reasonable accommodations for a qualified employee’s limitations related to, affected by, or arising out of pregnancy, childbirth, or other related medical conditions. Employers are prohibited from failing to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship. 

What pregnancy-related conditions are covered by the PWFA? 

The PWFA covers “known” limitations, which means such limitations as communicated to an employer by an employee. Notably, a physical or mental condition can be a PWFA limitation even if it does not rise to the definition of “disability” under the Americans with Disabilities Act (ADA). The PWFA does not require that pregnancy, childbirth, or related medical conditions be the sole or substantial reason for the physical or mental condition. 

The final rule provides examples of pregnancy, childbirth and related medical conditions covered by the PWFA, including current pregnancy; past pregnancy; potential or intended pregnancy; labor; childbirth; termination of pregnancy; ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; nausea or vomiting; high blood pressure; postpartum depression, anxiety, or psychosis; changes in hormone levels; and lactation and conditions related to lactation, such as low milk supply. 

According to the final rule, the limitation can be an impediment or problem that is minor or modest and can be episodic, such as morning sickness. It can also include actions that an employee needs to take for the health of their pregnancy, such as avoiding certain chemicals or not lifting heavy items. 

Who are qualified individuals under the PWFA? 

An employee or applicant who can perform the essential functions of a job with or without a reasonable accommodation is a qualified individual under the PWFA (the same definition as set forth in the ADA). The PWFA also states that an individual can be qualified even if they cannot perform one or more of the essential functions of the job if 1) the inability to perform such functions is only temporary; 2) the individual could perform the essential functions in the near future; and 3) the inability to perform the essential function(s) can be reasonably accommodated.  The terms “temporary,” “in the near future,” and “can be reasonably accommodated” are not defined in the final rule. 

What are potential accommodations under the PWFA? 

The final rule provides the below-listed examples of possible reasonable accommodations under the PWFA: 

• frequent breaks
• sitting/standing
• schedule changes, part-time work, and paid/unpaid leave
• telework
• parking
• light duty
• making existing facilities accessible and/or modifying the work environment and
• job restructuring, including temporarily suspending one or more essential functions, acquiring/modifying equipment, uniforms, or devices, or adjusting or examining policies. 

Does the accommodation process under the PWFA differ from the ADA? 

Covered employers generally are encouraged to follow the same reasonable accommodation process that they would under the ADA when responding to an employee request under the PWFA. The final rule clarifies that employers should respond expeditiously to a qualified individual’s request and consider granting an accommodation on a temporary basis, given the temporal nature of pregnancy. 

Employers should note that the PWFA’s rules regarding requests for documentation appear to be more restrictive than those under the ADA.  For example, employers may only request the “minimum documentation” necessary that confirms that a qualified employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions and describes the adjustment or change at work due to the limitation. 

Moreover, the final rule prohibits employers from seeking documentation in several circumstances, including (1) when the limitation and need for a reasonable accommodation is obvious; (2) when the employer already has sufficient information to support a known limitation related to pregnancy; (3) when the request is for additional restroom breaks, food/drink breaks, beverages near the work station, and/or sitting or standing as needed; (4) when the request is for a lactation accommodation; and (5) when the accommodation is available without documentation for other employees seeking the same accommodation for non-PWFA reasons.

How can an employer determine whether there is undue hardship that makes it impossible to accommodate? 

The PWFA definition of “undue hardship” is the same as the definition under the ADA. Generally, it means significant difficulty or expense for the operation of the employer. The final rule provides that an employer evaluating whether a temporary suspension of an essential function of the role will cause undue hardship should consider:

• the length of time an employee will not be able to perform the essential functions of the role
  
  
• whether there is work for the employee to accomplish
  
  
• the nature of the essential function, including its frequency
  
  
• whether the employer has provided other employees in similar positions with a temporary suspension of duties
  
  
• whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential functions in question and
  
  
• whether the essential functions can be postponed or remain unperformed for any length of time, and if so, for how long.  

The final rule also outlines modifications the EEOC presumes will not impose an undue hardship when requested by a pregnant employee. These include (1) allowing an employee to carry or keep water near and drink; (2) allowing an 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 to take breaks to eat and drink. According to the final rule, an employer’s delay in providing these modifications “will virtually always result in a finding of unnecessary delay” and a violation of the PWFA. 

How should covered employers prepare? 

Employers are encouraged to prepare for the final rule’s implementation while monitoring the legal landscape. This may include reviewing the final rule and related guidance, training certain employees who are likely to receive accommodation requests (especially supervisors/managers) on how to identify and respond to potential accommodation requests under the PWFA, and reaching out to employment counsel to ensure employment policies and practices are up to date. 

If you have any questions regarding the PWFA, the final rule or accommodation process, please contact the authors or your DLA Piper relationship attorney.