Our Labor & Employment Group provides the key takeaways from the Equal Employment Opportunity Commission’s final rule implementing the Pregnant Workers Fairness Act.

• The final rule covers “pregnancy, childbirth, or related medical conditions”
• Required accommodations are similar to the Americans with Disabilities Act
• The rule goes into effect on June 18, 2024

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) released the final version of its rule implementing the Pregnant Workers Fairness Act (PWFA). The PWFA became effective on June 27, 2023, and the EEOC has been accepting charges alleging violations of the law since then. The PWFA provides enhanced accommodation protections for an employee or applicant’s “known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” without undue hardship on the employer. The PWFA applies to “covered employers”: private and public sector employers with at least 15 or more employees.

After the PWFA went into effect in 2023, the text of the PWFA left many questions unanswered for employers about their obligations under the new law. The EEOC attempted to bridge the gap with its proposed rule issued on August 11, 2023 and 60-day comment period thereafter. According to the EEOC, its final rule implementing the PWFA “reflect[s] the EEOC’s deliberation and response to the approximately 100,000 public comments received on the Notice of Proposed Rulemaking.”

Key Takeaways

• Coverage: The EEOC’s final rule covers “pregnancy, childbirth, or related medical conditions.” The rule also covers lactation, miscarriage, stillbirth, and “having or choosing not to have an abortion” as medical conditions related to pregnancy or childbirth. Non-pregnant workers are not covered under the accommodation entitlements; however, the non-retaliation provisions of the PWFA may extend to non-pregnant workers who oppose unlawful practices in the workplace.
• Requirements for Accommodations: The final rule specifies that employers must accommodate workers’ known limitations (i.e., those which have been communicated to the employer). Like the Americans with Disabilities Act (ADA), the PWFA requires an interactive process with the worker to determine the reasonable accommodations that may be available. The final rule also provides examples of reasonable accommodations for workers, including frequent breaks; sitting; standing; schedule changes (e.g., part-time work); 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. A delay in providing a reasonable accommodation may result in a violation of the PWFA.
• Request for Supporting Documentation: The final rule makes clear that employers should only seek documentation in support of a requested accommodation when reasonable under the circumstances. A request for documentation is not reasonable when the worker’s limitation is obvious and the worker confirms the need for such accommodation through a self-attestation.
• Reasonableness of Accommodation: The final rule specifies that an accommodation may not be reasonable if it imposes an undue hardship on the employer. Derived directly from the ADA, the definition of “undue hardship” means any significant difficulty or expense to the employer’s business operation.
• Interaction with Other Laws: The PWFA does not replace or supersede any federal, state, or local laws that provide greater protection related to pregnancy, childbirth, or related medical conditions or job-protected leaves of absence. Although some limitations may also constitute ADA disabilities, PWFA limitations additionally include pregnancy-related limitations that are minor, intermittent, or temporary in nature, such as migraines or morning sickness.

The regulation will go into effect on June 18, 2024. The EEOC has indicated it will continue to provide further guidance for employers and workers in the future; in the meantime, however, employers will want to review their policies and procedures, including employee handbooks and training materials, to ensure they align with the PWFA and the EEOC’s final rule. Employers will also want to train managers and supervisors on the PWFA because front-line management frequently receives accommodation requests.

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