On April 15, 2024, the Equal Employment Opportunity Commission (“EEOC”) published its Final Rule to implement the Pregnant Workers Fairness Act (“PWFA”). The primary impact of the new law is that under the PWFA, employers of 15 employees or more are required to make affirmative efforts to accommodate a pregnant employee, not merely agree not to discriminate. The PWFA became law on June 27, 2023, but the requirements are not expected to take effect until June 2024 following the implementation of the Finale Rule.

The final rule was published in the Federal Register on April 15, 2024. The rule is available at https://www.federalregister.gov/d/2024-07527. The regulation goes into effect 60 days from April 19, 2024. The EEOC’s Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA) | U.S. Equal Employment Opportunity Commission is available on its website.

Among those key provisions include expanded definitions and guidelines for employers engaging in the reasonable accommodation process with pregnant workers.

The definitions of essential function, reasonable accommodation, and undue hardship are the same as under the Americans with Disabilities Act (“ADA”). The Final Rule clarifies, however, that a “qualified” individual encompasses two definitions under the PWFA.

First, the PWFA uses the traditional language from the ADA: “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position” is qualified.

Additionally, the PWFA allows an employee or applicant to be qualified even if they cannot perform one or more essential functions of the job if the inability to perform the essential function(s) is “temporary,” the employee could perform the essential function(s) “in the near future,” and the inability to perform the essential function(s) can be reasonably accommodated. The terms “temporary,” “in the near future,” and “can be reasonably accommodated” are not defined in the statute.

In an effort to provide some guidance regarding these terms, the Final Rule defines the term “temporary” as lasting for a limited time, not permanent, and may extend beyond “in the near future.” The EEOC explains that if the employee is pregnant, it is assumed that the employee could perform the essential function(s) “in the near future” because they could perform the essential functions within generally 40 weeks of the temporary suspension of the essential function. The Final Rule’s definition does not mean that the essential function(s) of a pregnant employee must always be suspended for 40 weeks, or that if a pregnant employee seeks the temporary suspension of an essential function(s) for 40 weeks it must be automatically granted. Unlike in the proposed rule, the Final Rule states whether the employee could perform the essential function(s) “in the near future” in situations other than when the employee is pregnant is determined on a case-by-case basis.

When requesting an accommodation, an employee must identify 1.) the limitation (the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions) and 2.) that the employee needs an adjustment or change at work due to the limitation.

The Final Rule confirms specific examples of possible reasonable accommodations under the PWFA, including: frequent breaks, sitting/standing, schedule changes, part-time work, and paid and unpaid leave, telework, parking, light duty, making existing facilities accessible or modifying the work environment, job restructuring, temporarily suspending one or more essential functions, acquiring or modifying equipment, uniforms, or devices, and adjusting or modifying examinations or policies.

Additionally, when requiring documentation is reasonable, the employer is limited to requiring documentation that itself is reasonable. The final rule has modified the definition of “reasonable documentation” so that it now means the minimum documentation that is sufficient to: (1) confirm the physical or mental condition; (2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with (1) “a limitation”); and (3) describe the change or adjustment at work needed due to the limitation.

Complying with this Final Rule and understanding and managing risks in this highly regulated environment can be daunting for employers.