Earlier this week, the Equal Employment Opportunity Commission (EEOC) issued a final rule providing guidance on the Pregnancy Workers Fairness Act (PWFA). The final rule will be published in the Federal Register on April 19 and becomes effective 60 days later. The final rule solidifies the EEOC’s broad interpretation of the PWFA.

Among other things, the PWFA, which went into effect on June 27, 2023, requires most employers to offer “reasonable accommodations” to qualified employees and applicants for known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The final rule sets forth several examples of conditions that would be covered under the law, including:

• An employee who is pregnant and as a result has pain when standing for long periods of time; 
• An employee who is pregnant and because of the pregnancy cannot lift more than 20 pounds;
• An employee who is pregnant and seeks time off for prenatal health care appointments; 
• An employee who requires therapy appointments for postpartum depression; 
• A pregnant employee who is seeking an accommodation to limit exposure to secondhand smoke to protect the health of a pregnancy; 
• A lactating employee who seeks an accommodation to take breaks to eat; and 
• An employee who requests leave for in vitro fertilization (IVF) treatment.

Although the PWFA borrows several provisions from the Americans with Disabilities Act (ADA), the final rule acknowledges that the PWFA could cover conditions that might not rise to the definition of a disability under the ADA.

In identifying an accommodation, employers must engage in the same interactive process outlined in the ADA and its implementing regulations. The PWFA final rule includes a non-exhaustive list of reasonable accommodations that includes:

• Modifying facilities;
• Job restructuring; 
• Part-time or modified work schedules; 
• Reassignment to a vacant position; 
• Breaks for use of the restroom, drinking, eating, and/or resting;
• Acquisition or modification of equipment, uniforms, or devices, including devices that assist with lifting or carrying for jobs that involve lifting or carrying;
• Providing seating for jobs that require standing, or allowing standing for jobs that require sitting; 
• Providing unpaid leave; and
• Providing light duty or remote work.

As with the ADA, an employer need not provide an otherwise reasonable accommodation if it would pose an undue hardship. Under the final rule, an employer should consider the following non-dispositive factors in deciding whether a proposed accommodation would cause an undue hardship:

• The nature and net cost of the accommodation;
• The financial resources of the employer, the size of the business, and the number, type, and location of its facilities;
• The financial resources of the facility involved, the number of persons employed at the facility, and the effect on expenses and resources;
• The type of operation of the employer, including the composition, structure, and functions of the workforce; and
• The impact of the accommodation on the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

The final rule notes that, “in virtually all cases,” the following four accommodations will not pose an undue hardship:

1. Allowing an employee to carry or keep drinking water nearby;
2. Allowing an employee to take additional restroom breaks;
3. Allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
4. Allowing an employee to take breaks to eat and drink.

While leave may be a reasonable accommodation under the PWFA, an employer cannot require that an employee take leave if another reasonable accommodation would enable the employee to continue working.

Additionally, although the final rule allows employers to request documentation supporting the need for an accommodation, an employer cannot request documentation if the employee is pregnant and seeks one of the four accommodations listed above or if the accommodation is related to pumping at work, among other restricted reasons. And, where an employer does require documentation, it cannot require that the documentation be submitted on a specific form. Likewise, it must give the employee “sufficient” time to submit the documentation. The final rule also notes that employees should be able to request accommodations from anyone with supervisory authority who regularly directs the employee’s work. “Employees should not be made to wait for a reasonable accommodation, especially one that is simple and imposes negligible cost or is temporary, because they spoke to the ‘wrong’ supervisor.”

Employers should be prudent about timely administering accommodations under the PWFA. Under the final rule, an unreasonable delay can result in a statutory violation even if the employer eventually provides the accommodation, depending on, among other things, the reason for the delay, the length of the delay, the length of time that the accommodation is needed, and the complexity of the accommodation.

The final rule also acknowledges that there may be situations where a physical or mental condition initially arises out of pregnancy, childbirth, or related medical conditions, but, once the pregnancy, childbirth, or related medical conditions resolve, the condition remains. Conversely, an employee may have a condition but, in their situation, it does not relate to pregnancy or childbirth, so the condition is not covered under the PWFA. For example, a pregnant employee who is vomiting because of food poisoning would not be eligible for an accommodation under the PWFA. For this reason, the EEOC instructs employers to engage in the interactive process to confirm whether the condition is covered under the PWFA, or alternatively, the ADA.

The final rule provides various a plethora of examples, interpretations, and guidance. Employers should familiarize themselves with their obligations under the PWFA and the final rule and should also ensure that their written accommodation policy incorporates the PWFA’s requirements.