• The EEOC released its final regulations under the Pregnant Workers Fairness Act (PWFA), taking an expansive reading of the PWFA’s requirements.
• Upon an employee’s request, an employer will need to consider eliminating one or more essential functions of a job for up to 40 weeks during an employee’s pregnancy and for an additional amount of time after its conclusion, unless doing so poses an undue hardship.
• Four common requests for accommodation are deemed to be reasonable and to not impose an undue hardship absent unusual circumstances.
• The EEOC restricts when employers may ask for documentation to support a request for reasonable accommodation and what information they may request.
• The final rule becomes effective June 18, 2024, 60 days after publication in the Federal Register.

The PWFA, which has been in force since June 27, 2023, expands protections for qualified individuals in the workforce by requiring employers with 15 or more employees to make reasonable accommodations for known limitations of employees and applicants related to pregnancy, childbirth, or related medical conditions. When it passed the PWFA, Congress directed the EEOC to issue implementing regulations and to provide examples of reasonable accommodations.

On April 15, 2024, the EEOC released its 408-page final rule and interpretive guidance implementing the PWFA. The EEOC’s Press Release for the final rule provides a link to the Federal Register, where the final rule will be published on April 19, 2024 and will take effect 60 days later, on June 18, 2024.

The final rule and interpretive guidance cover a wide variety of topics in detail. This Insight highlights some of the key provisions of the final rule and departures from the proposed rule issued in August 2023.

An Expansive Definition of Physical and Mental Conditions Arising Before, During, and After Pregnancy, Including Abortion

The EEOC retained its expansive reading of “pregnancy, childbirth, or related medical conditions” to include current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of contraception, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.

The EEOC also clarified that the PWFA’s use of the phrase “related medical conditions” can include not only new physical and mental conditions originating during pregnancy, but also pre-existing conditions that are exacerbated by pregnancy or childbirth.

Based upon the EEOC’s description of the comments received, the inclusion of abortion in the definition of “related medical conditions” appears to be one of the most controversial aspects of the final rule. Indeed, EEOC Commissioner Andrea R. Lucas issued a lengthy statement 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.”

No Level of Severity Required

In the final rule, the EEOC confirms that under the PWFA, the physical or mental condition that leads an employee or applicant to request an accommodation can be modest, minor, or episodic, and there is no requirement that conditions rise to a specific severity threshold. The final rule reminds employers that the PWFA is intended to cover conditions that do not rise to the level of disability applied under the Americans with Disabilities Act (ADA) and its implementing regulations, and is intended to help maintain the individual’s health and ability to work.

Temporarily Eliminating an Essential Function of the Job: A Broad Definition of the Phrase “in the Near Future” for Pregnancy and Case-by-Case Determination for Childbirth and Related Medical Conditions

When Congress passed the PWFA, it defined a “qualified” employee or applicant to not only include an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of a job, but also an employee or applicant who cannot perform an essential function of the job for a temporary period, if the person is or is expected to be able to perform the essential function “in the near future,” and the inability to perform the essential function can be reasonably accommodated.

The PWFA itself does not define either “temporary” or “in the near future.” The final rule defines “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” The final rule further defines “in the near future” as “generally forty weeks from the start of the temporary suspension of an essential function.” Here, the final rule differs from the proposed rule in that the 40-week period applies when the condition for which an accommodation is being sought relates to a current pregnancy. The Commission opines that it is necessary to tie the definition of “in the near future” to the typical length of a full-term pregnancy.

In the final rule, the Commission does not define “in the near future” for childbirth or related medical conditions, leaving this to be determined on a case-by-case basis, and noting only that “in the near future” does not mean indefinitely.

Employers accustomed to the ADA framework, in which inability to perform essential functions of a job (with or without reasonable accommodation) is disqualifying, will need to follow the PWFA’s different framework carefully when evaluating accommodation requests. That a worker is seeking a temporary suspension of an essential job function does not disqualify them from seeking a PWFA accommodation as long as that person is or is expected to be able to perform the essential duties within 40 weeks and the employer can reasonably accommodate the inability to perform that function. Such a person will be considered “qualified” to seek accommodation under the PWFA. If, on the other hand, there is no reasonable accommodation for the temporary suspension of an essential job function, then the individual is not “qualified.” Similarly, if the temporary suspension of the essential function causes an undue hardship, then the employer need not provide a reasonable accommodation that includes the suspension of that job function.

The final rule retains the proposed rule’s provision that does not consider the time an employee is on post-partum leave in the calculus of how long an employer must consider waiving an essential function of the job. Once the employee is able to return to work, the clock will restart, and the employer will need to consider at that point whether it can temporarily waive an essential function of the job as an accommodation. Rather than adopt the 40-week definition of “in the near future” for conditions arising after the birth of a child or for other related medical conditions as the EEOC had suggested in the proposed rule, the final rule simply notes that employers must make a case-by-case determination, and it includes a few examples in the interpretative guidance on the regulations.

The final rule also provides that whether the employer can reasonably accommodate the person’s inability to perform the essential function must be reassessed when the employee returns to work from pregnancy or childbirth, regardless of whether the employer provided the same or a different accommodation either prior to or during the employee’s pregnancy.

Notice of Need for a Reasonable Accommodation and the Interactive Process

The EEOC affirms that the PWFA incorporates the definitions of reasonable accommodation and undue hardship found in the ADA, but the final rule and interpretive guidance also outlines changes to these concepts given the aim of the PWFA and the wide range of conditions covered by the PWFA.

For example, the EEOC’s definition of the “interactive process” largely tracks the ADA’s interactive process with a few tweaks. As under the ADA, notice of the need for a PWFA accommodation can be conveyed verbally or in writing, can be expressed in plain language, and can come from a representative of the employee or applicant. The Commission emphasizes that these should be “simple processes.” The individual, or their representative, must only identify the relevant limitation and their need for an adjustment at work to trigger an employer’s obligation to engage in the interactive process. Under the final rule, the Commission has added “union representative” to the category of employee representatives who may seek an accommodation on an employee’s behalf.

The final rule and interpretive guidance also depart slightly from the ADA standard, however. Given the temporary nature of pregnancy-related conditions, the EEOC encourages employers to respond expeditiously to employees’ requests and to consider granting an accommodation request on an interim basis even if the employer believes it needs additional information, such as where a limitation has arisen suddenly. The final rule notes that this is a best practice, but that providing interim reasonable accommodations is not required. The EEOC further notes that providing an interim accommodation can be evidence an employer may use to contest a claim that an employer caused an unnecessary delay in providing a reasonable accommodation. The EEOC cautions that in many instances, the appropriate accommodation should be “obvious” to the employer and/or employee and that requiring an employee to take leave as an interim accommodation may violate the PWFA, depending on the circumstances.

Non-Exhaustive List of Potential Reasonable Accommodations

As directed by Congress, the EEOC provides a number of detailed examples of reasonable accommodations that it asserts would address known limitations related to pregnancy, childbirth or related medical conditions, including:

• Frequent breaks;
• Sitting/standing;
• Schedule changes, part-time work, and paid and unpaid leave;
• Telework or remote work;
• Reserved parking;
• Light duty;
• Making existing facilities accessible or modifying work environment;
• Job restructuring;
• Temporarily suspending one or more essential functions;
• Acquiring or modifying equipment, uniforms or devices;
• Adjusting or modifying examinations or policies.

“Predictable Assessments”

While the PWFA incorporates the ADA’s definition of reasonable accommodation, which requires an individualized assessment, the EEOC proposed that four specific accommodations be deemed de facto reasonable, referring to these as “predictable assessments.” The final rule states that these requested accommodations commonly will be requested and will typically require “modest and minor” alterations in the workplace on a temporary basis. The EEOC presumes that these specific modifications will not impose an undue hardship “in virtually all cases,” but employers may show in an individual case that they do create an undue hardship.

• Allowing an employee to carry or keep water and drink, as needed, in or nearby the employee’s work area;
• Allowing an employee to take additional restroom breaks, as needed;
• Allowing an employee whose work requires standing to sit, and vice versa, as needed;
• Allowing an employee to take breaks, as needed, to eat and drink.

The final rule states that an employer’s delay in providing the accommodations identified as predictable assessments “will virtually always result in a finding of unnecessary delay” and a violation of the PWFA.

Limited Opportunities to Request Documentation

The EEOC encourages employers and employees to communicate openly about accommodation needs under the PWFA and discourages employers from seeking documentation simply to establish a pregnancy. In particular, the EEOC rejected adopting the ADA’s approach to supporting documentation. Instead, the final rule states that an employer may obtain a medical documentation only if it is reasonable under the circumstances to determine if the employee has a qualifying condition and needs an adjustment or change at work due to the limitation.

In the final rule, the EEOC limits “reasonable documentation” to that which: (1) is the minimum sufficient to confirm the physical or mental condition underlying the employee’s limitation; (2) confirms that it is related to, affected by, or arises out of pregnancy, childbirth or related medical conditions; and (3) states that the change or adjustment to the job is needed due to the limitation. In the interpretive guidance accompanying the final rule, the EEOC notes that employers may ask the expected duration of the requested modification. The final rule notes that requests for more information than what is permitted may violate the PWFA’s prohibition on retaliation and that employers may not require supporting documentation to be submitted on a specific form. Medical documentation obtained must be kept confidential consistent with the confidentiality provisions of the ADA.

The final rule includes a blanket prohibition on employers’ seeking supporting documentation in five instances: (1) when the limitation and need for a reasonable accommodation is obvious; (2) when the employer already has sufficient information to support a known limitation related to pregnancy; (3) when the request is for one of the four “predictable assessment” accommodations; (4) when the request is for a lactation accommodation; and (5) when employees without known limitations under the PWFA receive the requested modification under the employer’s policy or practice without submitting supporting documentation. In such circumstances, an employee’s self-confirmation is the only thing an employer may seek.

In the proposed rule, the EEOC had proposed that only a self-attestation could be requested for an accommodation “regarding lactation or pumping.” In response to comments submitted by Littler’s Workplace Policy Institute and others, the final rule clarifies that the EEOC does not consider it to be reasonable to seek supporting documentation when an employee seeks a reasonable accommodation involving lactation and a time or place to pump at work, or other modification related to pumping at work. However, the final rule does not prohibit employers from seeking documentation if an employee seeks full-time remote work due to a condition that makes pumping difficult.

In addition, the final rule provides that a lactation accommodation can include permitting the employee to nurse during work hours where the child “is in close proximity” to the employee—e.g., when the employee is teleworking or when an employee takes a break to travel to a nearby or onsite daycare facility.

Finally, employers may not request or require an employee to be examined by a healthcare provider of the employer’s choosing.

Prohibited Practices

The final rule outlines the EEOC’s interpretation of five prohibited practices under the PWFA: (1) failure to provide reasonable accommodations; (2) requiring an employee or applicant to accept an accommodation; (3) denying equal employment opportunities; (4) requiring the employee to take leave when other accommodations are available; and (5) taking adverse action against a worker for seeking or using a reasonable accommodation.

Not surprisingly, the PWFA contains an anti-retaliation obligation. The EEOC’s proposed rule includes the provisions that: (1) the worker does not have to establish they have a known limitation or are qualified under the PWFA in order to bring a retaliation claim; (2) a request for a reasonable accommodation under the PWFA is protected activity; (3) the worker does not need to be actually deterred from enjoying rights under the PWFA for the claim to be actionable; (4) it may be retaliation if an employer requires medical documentation when it is not reasonable under the circumstances; and (5) if an employer is provided sufficient documentation but continues to obtain further documentation, such action constitutes retaliation.

The NPRM also sets forth a handful of examples of violations for the anti-coercion provision of the PWFA as well: (1) prohibition on coercion, intimidation, threats, harassment or interference can be based on the request for a reasonable accommodation; (2) coercion can include an employer’s requesting medical documentation when it is not reasonable under the circumstances; and (3) if an employer is provided sufficient documentation but an employer continues to seek further documentation, such action constitutes coercion.

What Can Employers Do Now?

The effective date of the final rule is expected to be June 18, 2024.

Employers should become familiar with the final regulations and the examples of reasonable accommodation in the EEOC’s interpretive guidance to better understand their obligations under the PWFA and how the EEOC will be interpreting and enforcing it in specific cases. Employers also may want to work closely with counsel to update any pregnancy accommodation policies and related forms to ensure that they comply with the final regulations.