Final Rule Issued on Pregnant Workers Fairness Act: What Employers Need to Know

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued a final rule (Final Rule) to implement the Pregnant Workers Fairness Act (PWFA), providing clarity on who is covered, the types of conditions covered, and how to request accommodations under the PWFA. Also included in the Final Rule are specific examples of how the law should be applied in various situations, as well as detailed interpretive guidance. This rule will be published in the Federal Register on April 19, 2024, and becomes effective 60 days after publication.[1]

Scope of the PWFA
The PWFA, which took effect in 2023, requires most employers with 15 or more employees to provide reasonable accommodations for a qualified employee’s or applicant’s known limitations related to pregnancy, childbirth, or related medical conditions, unless providing such an accommodation would cause an undue hardship to the employer.

Key definitions under the PWFA include:

• A “known limitation” is defined as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability [under the Americans with Disabilities Act (ADA)].”
  
• A “qualified employee” means “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.”  Under the PWFA, a worker can still be a qualified employee if unable to perform an essential function of the job, provided that inability to perform “is for a temporary period” so that performance is possible “in the near future,” and “the inability to perform the essential function can be reasonably accommodated.”  Note that the definition of “qualified employee” under the PWFA is much broader than that under the ADA, since it includes individuals whose inability to perform essential job functions is just temporary and the essential functions can be performed “in the near future.”

Notably, the PWFA does not define pregnancy, childbirth, or related medical conditions. In the Final Rule, the EEOC defines those terms as follows:

• “Pregnancy” and “Childbirth” refer to the pregnancy or childbirth of the specific employee in question, and broadly include “current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including vaginal and cesarean delivery.”

• “Related medical conditions” are medical conditions that are related to the pregnancy or childbirth of the specific employee in question. The Final Rule contains an extensive, non-exhaustive list of conditions that are, or may be, “related medical conditions.”
  
  In the interpretive guidance, the EEOC notes that some medical conditions are more clearly related to pregnancy or childbirth and will come within the scope of the PWFA, including lactation (including breastfeeding and pumping), miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, and HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome. Other conditions that may be related to pregnancy or childbirth, depending on the specific facts and circumstances of the individual situation, include, for example: anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; and menstruation.

Key Points Addressed by the Final Rule
The Final Rule and accompanying interpretive guidance address the following important issues, among others:

1. Related Medical Condition
To be a related medical condition under the PWFA, the employee’s medical condition must relate to pregnancy or childbirth. If an employee has a condition that does not relate to the employee’s pregnancy or childbirth, the condition is not covered under the PWFA. In its guidance, the EEOC provides the following example: If an employee who gave birth 2 weeks ago is vomiting because of food poisoning, that medical condition is not related to pregnancy or childbirth, and the employee is not eligible on that basis for a PWFA reasonable accommodation.

Related medical conditions can include conditions that existed before pregnancy or childbirth and can include conditions for which an individual already received an ADA accommodation. For example, an employee with diabetes may have received an ADA reasonable accommodation for her diabetes prior to pregnancy, and may require additional accommodations to manage her diabetes during pregnancy.

2. Inclusion of Abortion
The EEOC received close to 100,000 comments regarding the inclusion of abortion in the definition of “pregnancy, childbirth, and related medical conditions.” By definition, the EEOC notes, individuals who are choosing whether or not to have an abortion are pregnant and thus fall within the plain meaning of the phrase “pregnancy, childbirth, or related medical conditions.” The agency does state, however, that the PWFA and Final Rule do not require employers (or an employer-sponsored health plan) to fund abortions. Rather, the Final Rule ensures that employees who choose to have (or not to have) an abortion may seek reasonable accommodations from covered employers (which, in most cases, would likely involve requests for time off).

3. Reasonable Accommodations
The Final Rule offers numerous examples of potential reasonable accommodations that an employer could consider offering in appropriate circumstances. Importantly, the PWFA prohibits an employer from requiring an employee to take paid or unpaid leave if another reasonable accommodation is available.

Specifics examples of reasonable accommodations in the Final Rule include: making existing facilities accessible; job restructuring; part-time or modified work schedules; reassignment to a vacant position; restroom or other breaks; acquisition or modification of equipment, uniforms, or devices, including devices that assist with lifting or carrying for jobs that involve such requirements; modifying the work environment; providing seating for jobs that require standing, or allowing standing for jobs that require sitting; adjustment or modifications of examinations or policies; permitting the use of paid leave or providing unpaid leave for reasons including, but not limited to, recovery from childbirth, miscarriage, stillbirth, or medical conditions related to pregnancy or childbirth, or to attend health care appointments or receive health care treatment related to pregnancy, childbirth, or related medical conditions; placement in the employer’s light or modified duty program or assignment to light duty or modified work; telework, remote work, or change of work site; adjustments to allow an employee to work without increased pain or increased risk to the employee’s health or the health of the pregnancy; temporarily suspending one or more essential functions of the position; and providing a reserved parking space if the employee is otherwise entitled to use employer-provided parking. Reasonable accommodations for lactation include those required under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), among others. This list is not exhaustive, and employers should be ready to work with employees to identify other possible accommodations.

4. De Facto Reasonable Accommodations
The EEOC typically considers the following four types of workplace modifications (referred to as “predictable assessments”) to be reasonable accommodations that typically do not impose an undue hardship on an employer: (a) allowing an employee to carry or keep water near and drink, as needed; (b) allowing an employee to take additional restroom breaks, as needed; (c) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (d) allowing an employer to take breaks to eat and drink, as needed.

5. Undue Hardship
Similar to the ADA, employers bear the burden to show that they cannot accommodate an employee under the PWFA because of “undue hardship.” As defined in the Final Rule, “undue hardship” means, with respect to providing an accommodation, “significant difficulty or expense” incurred by a covered employer. According to the EEOC, a number of factors will be considered in evaluating undue hardship, including the nature and net cost of the accommodation needed, the financial resources of the facility in question, the overall financial resources of the covered employer, the type of operations, and the impact of the accommodation upon the operation of the facility at issue.

6. Interactive Process
Also like the ADA, employers and employees should engage in frequent communication to raise and resolve requests for accommodation. Notably, under the Final Rule, employers can avoid an assessment of damages in failure to accommodate claims under the PWFA if they demonstrate good faith efforts, in consultation with the employee, to identify and make a reasonable accommodation.

7. Limits on Supporting Documentation
Employers are not required to seek supporting documentation when an employee asks for reasonable accommodation, and the EEOC expects that employers should only do so when it is reasonable under the circumstances. For example, an employer should not request medical certification when: (a) the limit and need for accommodation is obvious; (b) the employer already has sufficient information to evaluate the request; (c) the request is for one of the de facto reasonable accommodations listed above; (d) the request is for a lactation accommodation; or (e) the requested accommodation is available to employees without known limitations under the PWFA pursuant to an employer’s policies or practices without submitting supporting documentation.

Employers should be aware that there are numerous additional federal laws that may be implicated by a worker’s pregnancy, childbirth, or related medical condition, including Title VII, the Pregnancy Discrimination Act, the Family and Medical Leave Act, the ADA, and the PUMP Act. Additionally, many states have laws covering pregnancy and childbirth, including pregnancy accommodation and family and medical leave laws. Employers should consider the application of one or more of these laws when evaluating a worker’s request for accommodation.

Next Steps for Employers
Now that the EEOC has provided employers with a clearer roadmap about the PWFA, employer should consider taking the following steps:

1. Review handbooks and written policies to ensure they comply with the PWFA.
2. Implement a separate accommodation policy specifically addressing accommodations for pregnancy, childbirth, and related medical conditions.
3. Implement internal procedures for handling requests for accommodation under the PWFA, preferably by trained human resources personnel.
4. Train managers and supervisors to recognize requests for accommodation under the PWFA and to follow internal procedures for addressing requests.
5. Given the broad reach of the PWFA and the Final Rule, consult with legal counsel before denying an accommodation request related to pregnancy or childbirth.

If you would like to consult on pregnancy accommodation or other employment law matters, please contact Margaret Scheele at [email protected]. 

Margaret Scheele (Washington D.C. team) is an employment law attorney with almost 30 years of experience. Margaret has represented a range of clients in a variety of industries, including aviation, food service, telecommunications, health care, and government contracting. Her practice includes the full range of advice and counseling work that arises within the employment context, including most recently COVID-related matters. 

[1]  On February 27, 2024, a federal judge in Texas blocked enforcement of the PWFA against the state of Texas and its divisions and agencies. The order does not apply to private employers in Texas or elsewhere.