The Background

The Pregnant Workers Fairness Act (PWFA) became effective on June 27, 2023. On August 11, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued its proposed regulations on the PWFA. After receiving over 100,000 public comments on its Notice of Proposed Rulemaking, the EEOC issued its final rule and interpretive guidance to implement the PWFA on April 15, 2024 (Final Rule).

The Final Rule was published in the Federal Register on April 19, 2024, and will become effective 60 days later.

Highlights of the PWFA

The PWFA requires most employers with 15 or more employees to provide “reasonable accommodations,” or changes at work, for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an undue hardship. The PWFA seeks to fill gaps in the federal and state legal landscape regarding protections for employees affected by pregnancy, childbirth, or related medical conditions and builds upon existing protections against pregnancy discrimination under Title VII of the Civil Rights Act of 1964 and access to reasonable accommodations under the Americans with Disabilities Act (ADA).

Key Considerations for Employers

Although this content in no way covers the entirety of the Final Rule, below are summarized some of the most relevant considerations under the PWFA that employers need to be mindful of.

In addition to requiring employers to make reasonable accommodation to the known limitations of a qualified employee related to pregnancy, childbirth, or related medical conditions, absent undue hardship, the PWFA also:

• Prohibits employers from requiring a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process.
• Prohibits an employer from requiring a qualified employee to take leave if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

The definition of a “related medical condition” covers multiple conditions, including, but not limited to the following:

• Termination of pregnancy, including via miscarriage, stillbirth, or abortion.
• Ectopic pregnancy.
• Preterm labor.
• Nerve injuries.
• Cesarean or perineal wound infection.
• Gestational diabetes.
• Preeclampsia.
• Anemia.
• Endometriosis.
• Sciatica.
• Lumbar lordosis.
• Carpal tunnel syndrome.
• Chronic migraines.
• Dehydration.
• Hemorrhoids.
• Nausea or vomiting.
• High blood pressure.
• Infection.
• Antenatal (during pregnancy) anxiety, depression, or psychosis.
• Postpartum depression, anxiety, or psychosis.
• Frequent urination.
• Incontinence.
• Loss of balance.
• Vision changes.
• Varicose veins.
• Changes in hormone levels.
• Vaginal bleeding.
• Menstruation.
• Lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections.

See § 1636.3(b). Additionally, in the Interpretive Guidance section of the Final Rule, the EEOC explains that fatigue caused by an employee’s pregnancy can also be a physical condition related to, affected by, or arising out of pregnancy.

Notably, despite receiving over 54,000 comments “urging the Commission to exclude abortion from the definition of ‘pregnancy, childbirth, or related medical conditions,’” the EEOC maintained the broad definition of “pregnancy, childbirth, or related medical conditions” as including one’s decision to have or not have an abortion.

The EEOC explains that such definition is “consistent with the Commission’s and courts’ longstanding interpretation of the same phrase” in the Pregnancy Discrimination Act, and further noted that: “[T]he PWFA is a workplace anti-discrimination law. It does not regulate the provision of abortion services or affect whether and under what circumstances an abortion should be permitted. The PWFA does not require any employee to have—or not to have—an abortion, does not require taxpayers to pay for any abortions, and does not compel health care providers to provide any abortions … Given these limitations, the type of accommodation that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or for recovery.”

Importantly, the EEOC explains that the physical or mental condition (the limitation) required to trigger the obligation to provide a reasonable accommodation under the PWFA does not need to meet the definition of a “disability” under the ADA. In other words, an employee does not need to have an impairment that substantially limits a major life activity to be entitled to a reasonable accommodation under the PWFA, nor does an employee need to have an “impairment” as defined in the regulation implementing the ADA.

Unlike the ADA, the PWFA provides that an employee can meet the definition of “qualified” even if they cannot perform one or more essential functions of the position in question with or without a reasonable accommodation, provided all three of the following conditions are met (See § 1636.3(f)(2)):

1. The inability to perform an essential function(s) is for a temporary period (“temporary” means lasting for a limited time, not permanent, and may extend beyond “in the near future”).
2. The essential function(s) could be performed in the near future (because pregnancy is a temporary condition with an ascertainable end date, for a current pregnancy, the rule defines “in the near future” to mean generally 40 weeks from the start of the temporary suspension of an essential function(s); however, the actual length of the temporary suspension of the essential function(s) will depend on individual circumstances).
3. The inability to perform the essential function(s) can be reasonably accommodated.

The Final Rule provides general examples of what could constitute a reasonable accommodation under the PWFA, including:

• Modifications or adjustments to a job application process that enable a qualified applicant with a known limitation under the PWFA to be considered for the position the qualified applicant desires.
• Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed that enable a qualified employee with a known limitation under the PWFA to perform the essential functions of that position.
• Modifications or adjustments that enable a covered entity’s employee with a known limitation under the PWFA to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without known limitations.
• Temporary suspension of essential function(s) and/or modifications or adjustments that permit the temporary suspension of essential function(s).

The Final Rule also gives several specific examples of reasonable accommodations, most of which are obvious – modified work schedules, teleworking, breaks for use of the restroom, modifying the work environment, and permitting leave to attend healthcare appointments. See § 1636.3(i).

The Final Rule spells out circumstances under which it is not reasonable for an employer to seek supporting documentation, such as,  when the condition and the adjustment or change at work needed due to the limitation are obvious and the employee provides self-confirmation. See § 1636.3(l)(1).

Conclusion

In anticipation of the Final Rule going into effect 60 days after April 19, 2024, and because PWFA is already in effect and being enforced, employers should ensure that they have updated their policies and accommodation procedures and familiarized themselves with the EEOC’s guidance.