Work With Me: EEOC Issues Final Rule Interpreting the Pregnant Workers Fairness Act

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced its Final Rule implementing the Pregnant Workers Fairness Act (“PWFA”), which went into effect in June 2023. Unless it is blocked by legal challenges, as discussed below, the Rule will become effective on June 18, 2024. Businesses with 15 or more employees should take immediate steps to understand and prepare to comply with the Rule.

Key Provisions

The PWFA focuses on the reasonable accommodation process, requiring covered entities to provide reasonable accommodations to qualified employees with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer undue hardship.

As explained in the Rule, the PWFA broadly expands employers’ obligations to accommodate pregnancy-related conditions, and will impact many employers’ existing approach to the interactive process. While it is important that employers thoroughly review the Rule, we note several key takeaways below.

Broad Definition: The Rule explains the PWFA’s broad definition of “pregnancy, childbirth, or related medical conditions.” The definition includes, but is not limited to, potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception), anemia, endometriosis, postpartum depression, and lactation (including breastfeeding and pumping). Of particular relevance to the legal challenges, the Rule explains that a pregnancy-related condition could include “having or choosing not to have an abortion.”

Reasonable Accommodations and Undue Hardship: Under the PWFA, the terms “reasonable accommodation” and “undue hardship” have the same meanings as they do under the Americans with Disabilities Act (“ADA”), but the Rule adds additional context to the definitions. For example, the Rule reiterates that while it is unlawful to require an employee to take leave as a reasonable accommodation, an employee is not prohibited from requesting leave.¹ The Rule also explains that an employer evaluating the “undue hardship” defense (meaning “significant difficulty or expense”) must provide a reasonable accommodation “up to the point of creating an undue hardship.” In an EEOC example, if an employer determines that eight weeks of leave would create an undue hardship, but six weeks of leave would not, then the employer must provide six weeks of leave and consider other reasonable accommodations that would not impose an undue hardship.

Essential Job Functions: In stark contrast to the ADA, an employee may be considered qualified under the PWFA even if the employee is unable to perform one or more essential functions if: (i) the inability to perform an essential function is for a “temporary” period; (ii) the essential function(s) can be performed in the near future, as determined on a case-by-case basis; and (iii) the inability to perform the essential function(s) can be reasonably accommodated. Notably, a “temporary” period is defined as “lasting for a limited time, not permanent, [but] may extend beyond ‘in the near future.’” The Rule further states that “in the near future” generally means 40 weeks from the start of the temporary suspension of an essential function based on the time of a full-term pregnancy.

The examples cited by the EEOC indicate that an employee’s inability to perform an essential function may require the employer to relieve the employee of such function while the pregnancy-related condition exists, or have other employees cover such essential function during that timeframe. These guidelines are likely to have significant impacts on covered employers.

Predictable Assessments: The Rule also explains that certain job modifications will be found to be reasonable accommodations that do not impose undue hardship “in virtually all cases.” Such job modifications include: (i) carrying or keeping water near and drinking, as needed; (ii) allowing additional restroom breaks, as needed; (iii) allowing sitting for those whose work requires standing and standing for those whose work requires sitting, as needed; and (iv) allowing breaks to eat and drink, as needed.

Requesting Supporting Documentation: Covered entities can only seek the minimum documentation needed to determine if an employee is entitled to a reasonable accommodation under the PWFA. In this regard, the EEOC makes several changes to the definition of “reasonable documentation.”

First, the EEOC clarifies in the Rule that reasonable documentation means “the minimum that is sufficient,” rather than merely stating that reasonable documentation means documentation that is “sufficient.”

Second, the supporting documentation need only confirm (rather than “describe or confirm”) the physical or mental condition that is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Confirmation of the physical or mental condition can be accomplished through a simple statement and does not require the inclusion of a diagnosis.

Third, pregnancy, childbirth, or related medical conditions “need not be the sole, the original, or a substantial cause of the physical or mental condition” given the statutory language of the PWFA. This is an important consideration for employees with physical or mental health concerns that are exacerbated by pregnancy, childbirth, or a related medical condition.

Finally, the supporting documentation should describe the adjustment or change needed, which must be “due to the limitation” to ensure that the documentation connects the physical or mental condition with the adjustment or change at work.

Legal Challenges to the PWFA

On February 27, 2024, a Texas federal judge blocked enforcement of the PWFA for employees of the State of Texas, in response to a lawsuit filed by Texas Attorney General Ken Paxton. While the federal government is expected to challenge the court’s decision, federal and private sector workers in Texas are still covered.

More recently, on April 25, 2024, Republican attorneys general from 17 states filed suit against the EEOC in the United States District Court for the Eastern District of Arkansas, challenging the PWFA’s inclusion of abortion in its list of covered conditions. Although the Rule notes that employers are not required to provide or pay for an abortion procedure or travel-related expenses, the PWFA may require employers to provide necessary time off for abortion-related procedures and recovery. The states challenging the PWFA in federal court are Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia. Rulings in the case could affect enforcement of the Rule in these states (and potentially beyond).

Takeaways for Employers

Prior to the June 18 effective date, employers should review the PWFA and EEOC guidance (including a fact sheet) to prepare to comply with requests for pregnancy-related accommodations. If you have any questions about the Rule or the reasonable accommodation process, please contact a member of AGG’s Employment team.

[1] On April 19, 2024, New York became the first state to mandate paid prenatal leave. New York Labor Law § 196-b will now require employers to provide up to 20 hours of paid leave in a 52-week period for pregnant employees to attend medical appointments and procedures.