On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) published a Final Rule to implement regulations aimed at enforcing the Pregnant Workers Fairness Act (PWFA).
What is the Pregnant Workers Fairness Act (PWFA)?
The PWFA, which became effective on June 27, 2023, requires private and public sector employers (including state and local governments) with 15 or more employees to provide reasonable accommodations for qualified employees or applicants with known limitations – whether physical or mental – relating to or arising out of pregnancy, childbirth, or related medical conditions, unless doing so would cause an undue hardship on the employer.
The EEOC Addressed Public Comments on Proposed Regulations
The EEOC published its Notice of Proposed Rulemaking (NPRM) on this matter on August 11, 2023. Learn more about the EEOC's NPRM in our blog post.
Following the EEOC's publication of its NPRM, the EEOC considered public comments on its proposed regulations, including those relating to how certain terms in the PWFA should be interpreted.
1. How an Employee or Applicant "Qualifies" Under the PWFA
As to how an employee or applicant may be "qualified" to perform the essential functions of the job, the Final Rule explains that this term has two applicable definitions:
- First, an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.
- Second, an individual may be qualified even if they cannot perform one or more essential job functions if:
(a) the inability to perform is "temporary;"
(b) the employee could perform the essential function(s) "in the near future;" and
(c) the inability to perform the essential function(s) can be reasonably accommodated.
2. "In the Near Future" Requirement Determined on a Case-by-Case Basis
In addressing this second category of "qualified" individuals, the Final Rule diverges from the NPRM in a meaningful but nuanced way. The proposed regulations sought to define "in the near future" as "generally 40 weeks from the start of the temporary suspension of an essential function" for workers, regardless of whether the condition was pregnancy, childbirth, or a related medical condition.
Conversely, the Final Rule states that whether an employee can perform essential job function(s) "in the near future" should be determined on a case-by-case basis for situations not involving a current pregnancy, whereas the 40-week time period should apply to workers who are currently pregnant. The EEOC explained that because pregnancy, by definition, is not indefinite, defining "in the near future" to be the length of a pregnancy is consistent with the purpose of the PWFA. Distinguishing between pregnancy and other conditions, the EEOC reasoned that other conditions, unlike pregnancy, may be indefinite and, therefore, require a different analysis.
3. EEOC Declines to Delete, Add, or Modify the PWFA's Listed Conditions
The EEOC also responded to public comments requesting that it delete, add, or otherwise modify the listed conditions included in its examples of "pregnancy, childbirth, or related medical conditions," such as lactation, miscarriage, stillbirth, having or choosing not to have an abortion, and more.
The EEOC resoundingly rejected these requests, explaining that the listed examples are non-exhaustive and consistent with the definition of "pregnancy, childbirth, or related medical conditions" provided in Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.
The EEOC also pushed back on comments that creating such a list of potential "related medical conditions" exceeded its authority, stressing that the determination of whether a condition is or may be a medical condition related to pregnancy or childbirth is fact-specific and must be determined on a case-by-case basis.
What is Next for Employers?
The Final Rule is scheduled to be published in the Federal Register on April 19, 2024, and will become effective 60 days after publication on or around June 18, 2024. Employers should take note of the EEOC's following resources for guidance on the Final Rule:
