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Employers have been eagerly awaiting the EEOC’s Final Rule to implement the Pregnant Worker Fairness Act, and it’s (finally!) here. On April 15, the EEOC issued the Final Rule, which largely follows the proposed rule (we blogged about the proposed rule here, and about the PWFA here). The Final Rule was published in the Federal Register on April 19, 2024 and will take effect on June 18, 2024. There are no major surprises for employers, but the Final Rule has arrived with a bit of controversy.

The “hot topic”: abortion as a “related medical condition”

Like the proposed rule, the Final Rule includes abortion as a “related medical condition” covered by the PWFA. During the public comment period of the proposed rule, whether to include “abortion” was a hot-button issue. Ultimately, the EEOC kept “abortion” in the definition, explaining in its Supplementary Information for the Final Rule that:  

  • “Abortion” is included in the definition of “pregnancy, childbirth, or related medical conditions” for the limited purpose of determining whether an employee qualifies for a workplace accommodation under the PWFA.
  • The type of abortion-related accommodation most likely to be sought under the PWFA is time off to attend a medical appointment or for recovery. In addition, the PWFA (like the ADA) does not require that leave as an accommodation be paid, and does not require reasonable accommodations that would cause an employer to pay travel-related expenses for an employee to obtain an abortion.
  • Title VII has long-required that employers who provide sick leave provide that leave in a non-discriminatory manner to women affected by pregnancy, childbirth, or related medical conditions–including allowing employees to use employer-provided leave in order to take time off to have an abortion.

The Final Rule largely follows the proposed rule

The Final Rule includes much of what employers likely expected given the proposed rule, including five important key points for employers (see our previous blog here):

1. The expansion of “known limitation”: The physical or mental condition leading the worker to seek an accommodation can be a modest, minor or episodic impediment. Unlike the ADA, there is no threshold of severity required under the PWFA.

2. Expansion of coverage for pre- and postpartum conditions: Under the Final Rule, the phrase “pregnancy, childbirth, or related medical conditions” is broad, covering a number of conditions such that an employee or applicant need not have been pregnant or given birth to be entitled to a reasonable accommodation under the PWFA. For example, “pregnancy” and “childbirth” includes conditions such as potential or intended pregnancy. “Related medical conditions” includes conditions such as termination of pregnancy, infertility, menstrual cycles and postpartum depression, as well as existing health conditions exacerbated by pregnancy and childbirth like anxiety or high blood pressure.

3. Broadening who is entitled to an accommodation: Under the Final Rule (unlike under the ADA), an employee or applicant may qualify for a reasonable accommodation even if they cannot currently perform one or more essential job functions. Under the Final Rule, “qualified” individuals include both:

  • Employees or applicants who, with or without reasonable accommodation, can perform essential functions of the employment position; and
  • An employee or applicant even if they cannot perform one or more essential functions of their position where: (1) the inability to perform the essential function(s) is “temporary,” (2) the essential function(s) could be performed “in the near future,” and (3) the inability to perform the essential function(s) can be reasonably accommodated.

The Final Rule breaks from the proposed rule in the definition of “in the near future” for conditions other than a current pregnancy.

  • The proposed rule defines “in the near future” as “generally within forty weeks” from the start of the temporary suspension of an essential function, for both a current pregnancy and conditions other than a current pregnancy. However, in the Final Rule, the 40-week period applies only when the accommodation being sought relates to a current pregnancy.
  • For a condition other than a current pregnancy, the EEOC removes the specific length of time for “in the near future” in the Final Rule, explaining that, unlike a current pregnancy (which is 40 weeks at full term), there is not a consistent measure of how long other conditions can generally last, meaning “in the near future” might encompass different time frames in different instances. The EEOC does clarify, however, that in these situations, “in the near future” does not mean “indefinitely.”

4. Eliminating an employer’s ability to request supporting medical documentation for specific accommodations: Employers may only seek supporting medical documentation when “reasonable” under the circumstances, and the Final Rule identifies four “straightforward and simple” modifications (the “predictable assessment” accommodations) the EEOC states will virtually always be found to be reasonable and not imposing an undue hardship:

  • Allowing a pregnant employee to carry or keep water near and drink, as needed;
  • Allowing a pregnant employee to take additional restroom breaks, as needed;
  • Allowing a pregnant employee whose work requires standing to sit, as needed, and vice versa;  and
  • Allowing a pregnant employee to take breaks to eat and drink, as needed.

Employers are not permitted to seek supporting medical documentation (beyond self-attestation) for these modifications, and the Final Rule notes that if there is delay in providing these accommodations to a qualified employee with a known limitation, the delay will almost always be found to be unnecessary because it is presumed that these modifications will be reasonable and do not impose an undue hardship. (That said, the Final Rule states employers should still conduct an individualized assessment when one of these accommodations is requested by a pregnant employee to determine if the requested accommodation causes an undue hardship, and employers may still be able to demonstrate that the proposed accommodation imposes an undue hardship for the business under their particular circumstances.)

In addition to the “predictive assessment” modifications, the Final Rule provides four other examples of when it is “not reasonable” to seek supporting documentation:

  • When the condition and the need for adjustment are obvious (and the employee provides a self-confirmation);
  • When the employer already has sufficient information to determine whether the employee has a limiting condition and needs an adjustment;
  • When the reasonable accommodation is related to pumping at work or nursing during work hours (and the employee provides a self-confirmation); and
  • If the requested accommodation is one that company policy or practice makes available to employees without known limitations without requiring the submission of supporting documentation.

5. There are a multitude of ways to accommodate covered workers: The Final Rule includes a non-exhaustive list of examples of reasonable accommodations, including:

  • Job restructuring, part-time or modified work schedules, or reassignment to a vacant position;
  • Allowing the use of paid leave (whether accrued, short-term disability, or another type of employer benefit), or providing unpaid leave, including to attend healthcare-related appointments and to recover from childbirth;
  • Accommodations related to pumping, such as ensuring that the area for lactation is in reasonable proximity to the employee’s usual work area; and
  • Accommodating a worker’s inability to perform one or more essential functions of a job by temporarily suspending the requirement that the employee perform that function, if the inability to perform the essential function is temporary and the worker could perform the essential function in the near future.  

Minor changes and clarifications

The EEOC did make some (relatively minor) changes to the Final Rule in addition to those mentioned above, and provided information and clarification in the Final Rule’s Supplementary Information, but these also generally follow the proposed rule. By way of example, the EEOC:

  • Clarifies that, unlike FMLA, the PWFA does not require that employees work for an employer for a certain length of time or number of hours before the PWFA applies
  • Provides in the Final Rule’s definition of “limitation” that the subject limitation must be a limitation of the employee in question–not an employee’s partner, spouse, or family member
  • Includes information in the Interpretive Guidance (which provides illustrative examples and is used by the EEOC as guidance when enforcing the PWFA) to address the possible overlap between the PWFA and the ADA, and notes that in situations where the protections of both may apply, the qualified employee may be entitled to an accommodation under either
  • Adds language in the Interpretive Guidance to reflect that accommodations to seek health care related to pregnancy, childbirth, or a related medical condition are not limited to “regular appointments” or “monitoring”
  • Explains that both communicating to the employer regarding the limitation and requesting a reasonable accommodation should be simple processes that do not require any specific language, that can be made to the same people at the covered entity at the same time, and that for both there are limitations as to the information the employer can require  
  • Modifies several of the examples in the Interpretive Guidance. For instance, in response to public comments requesting more examples of when an employer meets the burden of showing undue hardship, the EEOC added an example and revised previous examples to better explain why those situations create an undue hardship. A summary of a couple of examples from the Final Rule:
    • A convenience store clerk requests a switch from full to part-time work for the final three months of her pregnancy due to extreme fatigue. If her hours are reduced, the other clerk’s workload will increase significantly beyond his ability to handle his responsibilities, which would result in inadequate coverage to serve customers, keep shelves stocked, and maintain store security–and it would not be feasible to hire a temporary worker on short notice. The employer can likely show undue hardship based on the significant disruption to its operations and refuse to reduce the clerk’s hours, but must offer other reasonable accommodations, such as providing a stool and allowing rest breaks through the shift, assuming they do not cause undue hardship.
    • An office manager who works in a large building has asthma she controls with medication. Her asthma becomes worse because of her pregnancy, and she requests a ban on airborne irritants and chemicals (including fragrances, sprays and cleaning products) in the building. The employer could potentially show that ensuring a workplace completely free of scents or irritants would impose a significant financial and administrative burden, since such a ban would be difficult to enforce and would encompass many hygiene and cleaning products. However, the employer must offer alternative accommodations, such as providing an air purifier, minimizing the use of irritants in her vicinity, or allowing her to telework, assuming they do not cause undue hardship.

Practice pointer: check to make sure the PWFA applies

With the Final Rule in place, employers who have been waiting can now finalize workplace policies to comply with the PWFA–but only if necessary, because the PWFA does not displace federal, state or local laws that are more protective of workers affected by pregnancy, childbirth or related medical conditions. For instance, California’s Fair Employment and Housing Act requiring accommodation for pregnancy, childbirth or related medical conditions applies to employers with five or more employees (as opposed to the PWFA, which does not apply unless employers have 15 or more employees). And unlike the PWFA, California’s Pregnancy Disability Leave Law does not allow employers to cite “undue hardship” on the employer’s business as a reason not to provide leave to employees who are pregnant, give birth, or have pregnancy-related medical conditions, while they are disabled.

What employers should do now

  • Employers who haven’t already done so should work with counsel to examine the laws in the jurisdictions where they have employees, compare those to the PWFA, and ascertain which law is more protective–and thus applicable–for each jurisdiction.
  • Employers who have not yet crafted and implemented policies to meet the PWFA’s requirements should do so immediately since, as we explained in this blog, the PWFA became effective June 27, 2023–and the EEOC started accepting PWFA-based charges on that date. Employers who have PWFA policies in place should review the Final Rule (including the helpful examples in the Interpretive Guidance) to ensure compliance, making modifications as necessary.
  • Train Human Resources and management responsible for assessing accommodation requests to ensure they understand the PWFA’s requirements and can correctly implement the company’s PWFA policies.
  • Continue to watch the EEOC’s enforcement activity surrounding pregnancy-related discrimination. As we explained here, the EEOC has recently honed in on pregnancy-related discrimination (see, e.g., this Georgia case and this Louisiana one), with an EEOC representative sharing that the EEOC is poised to “use all tools at its disposal to root out pregnancy discrimination, including the Pregnant Worker Fairness Act (PWFA)[.]”
  • Keep watch for further guidance. EEOC Chair Charlotte Burrows reportedly said the agency will be working to provide further guidance for employers and workers about the Final Rule in the near future. In the meantime, the EEOC’s What You Should Know about the Pregnant Workers Fairness Act webpage is a helpful resource.