EEOC PWFA Final Rule Goes Into Effect June 18, 2024: Key Takeaways For Employers

The Pregnant Workers Fairness Act (PWFA), which has been in force since June 27, 2023, expands protections for individuals by requiring covered employers make reasonable accommodations to "known limitations" related to "pregnancy, childbirth or related medical conditions" of a "qualified" employee or applicant, absent undue hardship. A more comprehensive recap of the PWFA can be found in here in our previous post.

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) released its final rule and interpretive guidance clarifying an employer's obligations under the PWFA, the types of medical conditions covered and other items in connection with implementing the PWFA. After surviving various legal challenges (thus far), the rule goes into effect on June 18, 2024.

The final rule and interpretative guidance take an expansive reading of the PWFA. Here are key takeaways employers should be aware of as they implement the PWFA in their workplace going forward:

1. The Rule Sets Forth an Expansive Definition of "Related Medical Conditions" Arising Before, During, and After Pregnancy, Including Abortion and Infertility Treatment.

The finalized rule contains a very broad definition of "pregnancy, childbirth or related medical conditions." For example, the EEOC found the following circumstances fell within the broad definition:

• Infertility and fertility treatment;
• Pregnancy-related sickness; e.g., nausea, preeclampsia, carpal tunnel syndrome, vomiting and other pregnancy-related conditions;
• Lactation and/or issues with lactation
• The use of contraception;
• Termination of pregnancy, including via miscarriage, stillbirth, or abortion; and
• Menstruation.

The EEOC further clarified that "related medical conditions" can include not only new physical and medical conditions originating during pregnancy, but also include pre-existing conditions exacerbated by pregnancy.

Based on the comments received by the EEOC during the initial comment period, the inclusion of abortion in the definition of "related medical conditions" appears to be the most controversial aspect of the final rule. In fact, following the issuance of the final rule, the EEOC Commissioner Andrea R. Lucas issued a lengthy statement on LinkedIn explaining her disapproval of the final rule, stating that the EEOC's regulation "extends the new accommodation requirements to reach virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system."

In an attempt to respond to employer concerns about the abortion accommodation requirement, the EEOC guidance states that "nothing in the PWFA requires, or forbids, an employer to pay for health insurance benefits for an abortion." As such, the EEOC expects that the most common requests will be to attend an abortion-related appointment or for recovery. However, the inclusion of this clarifying statement did not dissuade states from challenging the rule's inclusion of abortion. But to date, those challenges have fallen short; most recently, on June 14, 2024, a federal judge in the Eastern District of Arkansas dismissed a lawsuit filed by seventeen state attorney generals challenging the rule because they lacked standing. Although the rule will go into effect on June 18, 2024, other legal challenges lie ahead.

2. Temporarily Eliminating Essential Function(s) of the Job and a Broad Definition of "Qualified" Applicants Under the PWFA.

The final rule provides the following expansive definition of "qualified" applicants and employees covered by the PWFA:

• An employee or applicant is "qualified" if that individual can perform the essential functions of the position, with or without reasonable accommodations; and
• An employee or applicant is "qualified" if: (a) their inability to perform an essential function is for a "temporary period;" and (b) the essential function can be performed in the "near future."

The final rule defines "temporary" as "lasting a limited time, not permanent, and may extend beyond 'in the near future.'" "In the near future" generally means "forty weeks."

Unlike the Americans with Disabilities Act (ADA), the PWFA allows for the temporary suspension of an essential job function, if the employee requesting the accommodation is able to (or is expected to be able to) perform the essential functions in the near future and the employer can reasonably accommodate the inability to temporarily perform that function. If, however, the suspension of the essential function causes undue hardship, then the employer need not provide a reasonable accommodation that includes suspension of that job function.

Under the final rule, certain factors may be considered in determining whether the suspension of an essential function of the job will cause "undue hardship." For example, an employer may consider:

• The length of time the individual will be unable to perform the essential function;
• Whether there is work for the individual (outside of the essential function);
• The nature of the essential function and the frequency of the essential function;
• If there are other individuals who can perform (or be hired to) perform the function; or
• If the essential function can be temporarily suspended or remain unperformed.

3. The Individual's Known "Limitations" Do Not Have to Be Severe.

Under the PWFA, an individual's known "limitations" may include impediments or problems that are considered "modest, minor or episodic," and can include actions that need to be taken to maintain the individual's health or the health of the pregnancy. Unlike the ADA, which has a higher threshold for what qualifies as a disability, the PWFA is intended to cover conditions that would not otherwise be considered a disability under the ADA as it is intended, in part, to help pregnant employees maintain their health or the health of their pregnancy. Meaning that individuals with "healthy and/or normal pregnancies" may seek accommodations under the PWFA.

4. Only Individuals with the Actual Limitation or Condition will Receive an Accommodation.

The PWFA's regulations only require employers to provide accommodations to eligible employees, i.e., those that themselves have a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical condition. Accommodations are not extended to an eligible employee's partner, spouse, or family member.

5. Employers Should Be Reasonable When Requesting Supporting Documentation.

While the PWFA permits employers to request documentation relating to an accommodation request, it does not require employers to do so and if they do, such a request must be "reasonable."

Furthermore, employers are prohibited from seeking documentation in certain circumstances, including: (1) when the physical or medical condition and accommodation needed are "obvious"; (2) when the employer already has sufficient information to determine whether 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 needs an adjustment or change at work due to the limitation; (3) when the accommodation is related to a time and/or place to pump or nurse at work; and (4) when the requested accommodation is available to employees seeking accommodations for non-PWFA purposes and where such employees are not required to submit supporting documentation.

Much like the ADA, the EEOC expects employers requesting documents to follow the "interactive process" and not request more information than required to make a proper assessment regarding the request for accommodation.

6. The Process of Requesting an Accommodation Should Not Be "Complicated" or "Difficult."

The process of informing an employer of the limitation and requesting a reasonable accommodation is not intended to be "complicated" or "difficult." Employees are permitted to do both through various avenues and means and employees should not be made to wait for a reasonable accommodation because they spoke to the "wrong" supervisor.

7. The EEOC Provided Multiple Examples of Accommodations That May Assist Employers in Determining What Accommodations Might be "Reasonable."

The final rule specifically lists the following examples of possible reasonable accommodations:

• Frequent breaks
• Sitting/standing
• Schedule changes
• Part-time work
• Paid and unpaid leave
• Telework
• Reserved parking
• Light duty
• Making existing facilities accessible or modifying the work environment
• Job restructuring
• Temporary suspension of one or more essential functions
• Acquiring or modifying equipment, uniforms, or devices
• Adjusting or modifying examinations or policies

The rule notes that what will qualify as a reasonable accommodation will largely depend on the circumstances, and that different accommodations may be needed at different phases of pregnancy and after childbirth. As with accommodations under the ADA, the PWFA requires employers to engage in an "interactive process" to determine whether the requested accommodation allows the employee to perform the essential functions of the role. Similar to the ADA, an employer is not required to provide the requested accommodation or provide any of the potential accommodations listed above, however, an employer must be reasonable in its engagement of the interactive process and may not unreasonably deny an accommodation or delay the process.

8. Employers Are Not Required to Provide Accommodations If Doing So Would Create an "Undue Hardship.

As mentioned above, employers are not required to provide accommodations if doing so would create "undue hardship." Apart from providing for the temporary suspension of an essential function – which often creates undue hardship under the ADA – "undue hardship" is construed under the PWFA the same as it is under the ADA – as a significant difficulty or expense in, or resulting from, the provision of the accommodation. An "undue hardship" under the PWFA considers the financial realities of the particular employer, but the concept of undue hardship is not limited to financial difficulty. "Undue hardship" also refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.

9. Employers are Prohibited From Engaging in Certain Behavior.

The final rule makes clear that employers are prohibited from engaging in certain behavior, including: (1) requiring employees to accept an accommodation other than one arrived at through the interactive process; (2) requiring an employee to take leave (paid or unpaid); and (3) taking adverse action against an employee who sought or was granted a reasonable accommodation.

10. Some Accommodations are Reasonable in "Virtually All Cases."

The following accommodations, when requested by a pregnant employee, are reasonable, don't require documentation, and should be granted in "virtually all cases": (1) allowing an employee to carry or keep water near and drink, as needed; (2) allowing an employee to take additional restroom breaks, as needed; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (4) allowing an employee to take breaks to eat and drink, as needed.

11. Employers Must Act with "Expediency" and Can Provide Interim Accommodations on an As Needed Basis.

Given the temporary nature of pregnancy, childbirth, and related medical conditions, it is "crucial" for employers to act with "expediency in responding to and providing requested accommodations." Furthermore, to bridge the gap while a specific accommodation is being considered, an "interim reasonable accommodation can be used when there is a delay in providing the reasonable accommodation." While interim reasonable accommodations are not required, providing one is considered to be a "best practice under the PWFA" and may help limit an employer's exposure to liability.

Employers should make sure that they are in compliance with the PWFA, provide appropriate training for HR professionals to ensure they understand differences between the ADA and PWFA and provide a list of suggested accommodations set forth in the final rule as a good starting point for the interactive process, and contact counsel before denying pregnancy or childbirth-related accommodation requests based on an "undue hardship."

Mintz's Employment Practice will continue to monitor any future developments and legal challenges and remains ready to assist employers with compliance with the PWFA and the EEOC's final rule.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.