The U.S. Equal Employment Opportunity Commission (“EEOC”) has unveiled its final rule and interpretive guidance implementing the Pregnant Workers Fairness Act (“PWFA”). The final rule comes after considering extensive comments on the August 2023 draft rulemaking, and will take effect on June 18, 2024.
Below are some of the key highlights and deviations from the proposed regulations issued on August 11, 2023:
Key PWFA Requirements and Qualified Employees
The PWFA requires employers with at least 15 employees and other covered entities to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause undue hardship on the operations of the employer’s business.
A "qualified" employee is one who can perform the essential functions of a job, with or without reasonable accommodation. This definition extends to those who cannot perform an essential job function temporarily, provided they can do so "in the near future" and the inability to perform can be reasonably accommodated. The final rule defines "temporary" as "lasting for a limited time, not permanent," with a scope that extends beyond "the near future." For pregnancy-related conditions, "in the near future" is generally defined as forty weeks from the start of the temporary suspension of an essential function. However, for childbirth and related medical conditions, the determination is made on a case-by-case basis.
Pregnancy, Childbirth, or Related Medical Conditions
The EEOC maintains a broad interpretation of "pregnancy, childbirth, or related medical conditions." This encompasses not only current, past, or potential pregnancies but also pre-existing conditions exacerbated by pregnancy or childbirth, and other conditions such as lactation, use of contraception, menstruation, postpartum depression, anxiety, or psychosis, infertility treatments, endometriosis, changes in hormone levels, gestational diabetes, miscarriage, ectopic pregnancy, stillbirth, and having or choosing not to have an abortion. With respect to employees choosing to undergo an abortion procedure, employers are not obligated to cover the cost of the procedure or related travel expenses. However, they are required to allow the necessary time off for the procedure and recovery.
The final rule confirms that under the PWFA, the severity of a physical or mental condition prompting an accommodation request can be modest, minor, or episodic. Unlike the Americans with Disabilities Act (“ADA”), there is no requirement for conditions to reach a specific severity threshold.
Notice of Accommodation Need and the Interactive Process
The final rule also modifies ADA definitions of reasonable accommodation and undue hardship to align with the PWFA’s objectives and to cover the wide range of covered conditions. It simplifies the accommodation process: an employee’s verbal or written notice of a limitation and a needed workplace adjustment, whether communicated verbally or in writing and may come from the employee, a representative, or a union representative, is enough to obligate an employer to begin the interactive accommodation process.
This rule stresses that the interactive process can be triggered without formal paperwork or communication through specific channels, underscoring that an initial request or indication of need from the employee suffices to put the employer on notice. The final rule limits reasonable documentation to the minimum necessary to confirm the physical or mental condition, its relation to pregnancy, and the need for a job adjustment, and thus discourages employers from seeking documentation solely to establish pregnancy.
Potential Accommodations
The EEOC provides detailed examples of reasonable accommodations to address known limitations related to pregnancy, childbirth, or related medical conditions. These include frequent breaks, sitting-schedule changes, part-time work, telework, job restructuring, temporarily suspending one or more essential functions of a job, and more. Moreover, the final rule specifies that the following four pregnancy accommodations are reasonable and should be granted in almost every circ*mstance without documentation: 1) additional restroom breaks, 2) food and drink breaks, 3) allowing water and other drinks to be kept nearby, and 4) allowing sitting or standing, as necessary.
What Employers Should Not Do
The final rule outlines five prohibited practices under the PWFA, including failure to provide reasonable accommodations, requiring an employee to accept an accommodation, denying equal employment opportunities, forcing an employee to take leave when other accommodations are available, and taking adverse action against an employee for seeking or using a reasonable accommodation.
Penalties for employers under the PWFA may include injunctive and other equitable relief, compensatory and punitive damages, and attorney’s fees. However, employers can mitigate potential monetary damages by demonstrating good faith efforts to collaborate with employees in identifying and implementing reasonable accommodations, which serve as affirmative defenses.
What Employers Can Do Now
With the final rule expected to take effect on June 18, 2024, employers should familiarize themselves with the regulations and examples of reasonable accommodations provided by the EEOC. They may also consider updating pregnancy accommodation policies and related forms to ensure compliance. For assistance, please contact one of Honigman’s Labor and Employment Attorneys here.
