Friday, April 19, 2024: US EEOC Officially Published Controversial Final Regulations to Implement the Pregnant Workers Fairness Act
Regulations Take Effect on June 18, 2024
Commissioners’ Vote to Approve Final Rule was Along Party Lines
Amid some controversy regarding its scope, particularly as to abortion, the U.S. Equal Employment Opportunity Commission (“EEOC”) officially published in the Federal Register its Final Rule on regulations to implement the “Pregnant Workers Fairness Act” (“PWFA”). The agency first announced the Final Rule on Monday, April 15 (see our story here). In addition, the Commission provided a summary of key provisions here and it updated its “What You Should Know about the Pregnant Workers Fairness Act” webpage.
The new regulations will take effect on June 18, 2024, a little over a week short of the first anniversary of the statute’s June 27, 2023 effective date. However, on February 27, 2024, U.S. District Judge James Wesley Hendrix in the Northern District of Texas (Lubbock) blocked its enforcement in the state of Texas (see our story here).
The PWFA equates pregnancy with a disability for the first time by requiring a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation(s) related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity. For additional background on the statute, see our stories here and here.
What are the Highlights?
The EEOC identified the following as highlights from the final regulation:
- Numerous examples throughout of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others.
- Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including lactation, miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, and HELLP (hemolysis, elevated liver enzymes and low platelets syndrome). According to the agency, this guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII of the Civil Rights Act of 1964, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions” from Title VII.
- Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.
- Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and may only do so when it is reasonable under the circumstances.
- Explanation of when an accommodation would impose an undue hardship on an employer and its business.
- Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.
Other notable provisions include:
Roadmap to the Rule, its Preamble, & Interpretive Guidance (Appendix A)
Via the Final Rule, the EEOC amended its regulations to add a new section – Part 1636 – to its regulations located at Title 29, Chapter XIV of the Code of Federal Regulations (“CFR”). Thus, the citation for these new regulations will be 29 CFR Part 1636. The Federal Register Notice containing the Final Rule, which spans 125 pdf pages, also includes an Interpretive Guidance, attached as Appendix A to Part 1636 (pdf page 29189). The Preamble section of the Notice ends, and the text of the finalized regulations begins, here (pdf page 29182).
How We Got Here
On June 28, 2023, the day after the statute took effect, the EEOC submitted its proposed regulations to implement it for the White House’s Office of Management and Budget (“OMB”) to review. On August 11, 2023, the Commission published its Notice of Proposed Rulemaking (“NPRM”) in the Federal Register. The public comment period closed on October 10, 2023, with approximately 98,600 comments submitted. “Several of those comments were signed by multiple individuals; thus, the total number of comments was over 100,000,” the EEOC reported. The statute provided that the EEOC must issue finalized regulations to implement it by December 29, 2023. Two days before this statutory deadline, the EEOC submitted its finalized regulations to the OMB, but the OMB took over three months to approve them on April 4, 2024.
For more background, see our stories here, here, here, and here.
What Were the Changes Between the Proposed Version and the Final Rule?
The agency discussed the public comments, and its responses, including detailing the changes made to the finalized version, in the Preamble to the Final Rule beginning here.
Abortion Controversy
As to its inclusion of abortion in the definition of “pregnancy, childbirth, or related medical conditions,” the EEOC noted the approximately 54,000 public comments urging it to exclude abortion from that definition and the approximately 40,000 comments supporting its inclusion. According to the Commission, it did not exceed its authority in creating its list of potential “related medical conditions” that are or may be related to pregnancy or childbirth. Specifically, in the Preamble, the EEOC states:
“The list includes related medical conditions that courts and the Commission, in its Enforcement Guidance on Pregnancy Discrimination, have determined can, but are not always required to be, related medical conditions, as well as a non-exhaustive list of other conditions that, depending on the situation, can be related to pregnancy or childbirth. The list clearly states that it consists of examples that “are or may be” related medical conditions in a specific case. In each case, a determination that a medical condition is related to pregnancy or childbirth is fact-specific and contingent on whether the medical condition at issue is related to the pregnancy or childbirth of the specific employee in question. The Commission notes that regardless of whether pregnancy, childbirth, or related medical conditions are at issue, the provision of 42 U.S.C. 2000gg-5(a)(2) stating that nothing in the PWFA shall be construed “by regulation or otherwise, to require an employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment” applies.” [citations omitted]
Commission Votes
The EEOC announcement on April 15 stated that the Final Rule was “approved by a majority vote of the Commission” on April 3, 2024. The following day, the OMB approved it. Bloomberg reported that “[t]he final regulations passed with a 3-2 vote on party lines, according to a source close to the agency.”
Currently, the Commission’s webpage listing how each Commissioner voted on specific items only runs through February 2024. However, our review of previous votes revealed that the two Republican Commissioners voted differently on the DRAFT Final Rule than they did on the proposed version of the Rule. On December 22, 2023, the Commission voted 3-2 to approve the “Draft Final Substantive Rule to Implement the PWFA.” The Democratic Commissioners all voted to approve while the Republicans disapproved. In contrast, when the Commission voted on the NPRM both on June 27, 2023 and on August 1, 2023, Andrea Lucas (R) joined Vice Chair Jocelyn Samuels (D) and Chair Charlotte Burrows (D) in approving it, while Keith Sonderling (R) abstained. Note that the EEOC submitted this NPRM to OMB on June 28, 2023, and published its NPRM in the Federal Register on August 11, 2023. Since Kalpana Kotagal (D) was not yet on the Commission (she was sworn in on August 9, 2023), the votes on the NPRM were both 3-0.
Commissioner Statements
Four of the five Commissioners issued statements on the Final Rule.
The Commission’s press release contained Chair Burrows’ take in support: “This final rule provides important information and guidance to help employers meet their responsibilities, and to jobseekers and employees about their rights. It encourages employers and employees to communicate early and often, allowing them to identify and resolve issues in a timely manner.”
Vice Chair Samuels’ statement in favor noted: “EEOC’s regulations provide comprehensive descriptions of the PWFA’s provisions, numerous real-world examples of how they apply, and needed clarity on the law’s requirements. The EEOC stands ready to assist employees and employers in understanding the PWFA and regulations to fully bring the promise of the law to life.”
Commissioner Kotagal’s statement said in part: “Consistent with legislative intent, the EEOC’s regulation advances the promise that pregnant and postpartum workers should not have to choose between their health and a paycheck. The Interpretive Guidance provides concrete examples that will bolster compliance, reaping benefits for employers and employees alike. I’m proud to support this regulation and will continue to promote meaningful enforcement of these hard-won rights.”
Commissioner Lucas’ summary of her full 16-page statement noted: “I support elements of the final rule. However, I was unable to approve it because it purports to broaden the scope of the statute in ways that, in my view, cannot reasonably be reconciled with the text. At a high level, the rule fundamentally errs in conflating pregnancy and childbirth accommodation with accommodation of the female sex, that is, female biology and reproduction. The Commission extends the new accommodation requirements to reach virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system. And the results are paradoxical. Worse, the Commission chose not to structure the final rule in a manner that realistically allows for severability of its objectionable provisions from its reasonable and rational components.”
As of our WIR deadline, Commissioner Sonderling had not issued a statement regarding the Final Rule.