EEOC releases final rules for Pregnant Workers Fairness Act

Congress passed the Pregnant Workers Fairness Act (PWFA) at the end of 2022 in order to protect the needs of pregnant workers. Essentially, the law requires employers with 15 or more employees to provide reasonable accommodations to an applicant or employee’s known limitations due to pregnancy, childbirth or related medical conditions, unless the accommodation will cause an undue hardship.

The PWFA went into effect in June 2023 and the EEOC published proposed rules for the law last August. After considering more than 100,000 public comments, the EEOC published its final rules on April 15, 2024. The final rules are largely the same as the proposed rules; however, the EEOC aimed to clarify definitions and limitations of the law in the final rules.

Some of the key provisions of the final rules include:

• The EEOC is interpreting what qualifies as a “related medical condition” broadly. The law protects workers experiencing a condition “related to, affected by, or arising out of” pregnancy, childbirth or related medical conditions as including lactation, miscarriage, stillbirth” and “having or choosing not to have an abortion.” The EEOC noted that “a pregnancy, childbirth, or related medical condition does not need to be the sole, the original, or a substantial cause of the physical or mental condition at issue for the physical or mental condition” to fall under PWFA.
• The duty to accommodate under the PWFA is similar to an employer’s responsibility to accommodate workers with disabilities under the Americans with Disabilities Act (ADA). However, an employee’s limitations do not need to rise to the level of a disability under the ADA to be eligible for an accommodation under the PWFA. The limitations can arise from a modest, minor and/or episodic problem that is impacting an employee’s ability to maintain their health or the health of the pregnancy.
• Reasonable accommodation under the PWFA may include temporary reassignment or — unlike the ADA — temporary suspension of an essential function of the job. This may require an employer to suspend an employee’s obligation to perform an essential job duty and reassign the task to another worker, so long as doing so does not create an undue hardship on the employer.
• Employers may only seek documentation to support a request for accommodation under the PWFA in situations where it is reasonable and necessary to determine if an employee is entitled to a reasonable accommodation. The final rules explain that documentation is “necessary” only when it: (1) confirms the physical or mental limitation; (2) confirms that the condition is related to, affected by or arising out of pregnancy, childbirth or related medical conditions; and (3) describes the adjustment or change needed at work that is due to the limitation. Examples of situations where documentation would not be reasonable include: (a) when the condition and need are obvious and the employee provides self-confirmation of same; (b) when an employee seeks accommodation to carry extra water or take additional breaks to use the restroom, eat or drink; (c) when an accommodation is related to nursing at work; or (d) when an employee requests an accommodation that is regularly provided to employees outside of the PWFA.

The final rules are scheduled to take effect June 18, 2024. However, shortly after the rules were released, attorneys general from 17 states filed a federal lawsuit in the Eastern District of Arkansas challenging the law. The lawsuit argues that the final rules are unconstitutional because they include accommodations for abortion.

The attorneys general are seeking a preliminary injunction to stop enforcement of the rule and have asked that it be permanently enjoined. The court has not yet ruled on the request for a preliminary injunction.

Regardless, employers should plan for how they will comply with the law and consider updating their employment policies to include accommodations under the PWFA.

Editor’s note: Shelby Shroff is an attorney at Wright Lindsey Jennings. The opinions expressed are those of the author.