EEOC's final rule for the PWFA clarifies employer responsibilities

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final rule and interpretive guidance to implement the Pregnant Workers Fairness Act (PWFA). It is scheduled to be published on April 19, 2024, and the regulation will go into effect 60 days thereafter (anticipated to be June 18, 2024). The final rule clarifies how pregnant and new mothers can request reasonable accommodations to enable them to continue with their current employment situations, while also providing guidance to employers on how to properly address such requests without violating the law.

Background on the new regulation

The PWFA was signed into law on December 29, 2022, and became effective on June 27, 2023. It requires covered employers to provide “reasonable accommodations” to qualified employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” Covered employers include private employers with 15 or more employees; the provisions of the PWFA apply to employees and applicants.  On August 11, 2023, the EEOC issued a Notice of Proposed Rulemaking (NPRM) for implementing the PWFA and invited public comment through October 10, 2023. Approximately 98,600 comments were submitted to the EEOC. The final rule summarizes the issues raised by the public comments and provides the EEOC’s reasoning for adopting or rejecting various recommendations, it also provides examples of reasonable accommodations and ways employers can abide by the regulation.

What is covered under the PWFA?

In the final rule, a “known limitation” is defined as a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Importantly, the physical or mental condition must be a condition of the employee (or applicant) themselves. The examples offered by the EEOC are illustrative; they are not intended to cover every limitation or possible accommodation under the PWFA. Additionally, the final rule explains that “related to, affected by, or arising out of” is an inclusive term, and pregnancy, childbirth or related medical conditions do not need to be the sole, original or substantial cause of the physical or mental condition at issue in order to qualify. The final rule decrees that determining whether a physical or mental condition meets this standard should typically be straightforward and readily apparent (e.g., lactation, miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, or HELLP syndrome).

The EEOC also noted that accommodations due to physical or mental conditions related to infertility or fertility treatments and contraception may be provided under the PWFA, absent undue hardship, depending upon the facts of the case. Additionally, the EEOC affirmed that “abortion” is included in the regulation’s definition of “pregnancy, childbirth, or related medical conditions” for the limited purpose of qualifying for an accommodation under the PWFA, despite receiving many comments in opposition. Where a condition may no longer qualify for PWFA accommodation, the employee may seek an accommodation under the Americans with Disabilities Act (ADA).

How are employers expected to accommodate their workers?

The PWFA encourages an interactive process to help the employer and employee identify the limitation and the potential reasonable accommodation. No specific words are necessary to request an accommodation and begin the interactive process. Employers should note that an employee may require different modifications as the pregnancy progresses, the employee recovers from childbirth, or the related medical condition improves or worsens. The final rule repeatedly highlights that each accommodation request should be fact-specific and assessed on a case-by-case basis.

Examples of reasonable accommodations under the PWFA include: (1) frequent breaks; (2) sitting/standing; (3) schedule changes, part-time work, and paid and unpaid leave; (4) telework; (5) parking; (6) light duty; (7) making existing facilities accessible or modifying the work environment; job restructuring; (8) temporarily suspending one or more essential functions; (9) acquiring or modifying equipment, uniforms or devices; and (10) adjusting or modifying examinations or policies.

The final rule identifies several simple modifications that will generally always be found to be reasonable accommodations, that do not impose an undue hardship when requested by a pregnant employee, and that are common-sense, low-cost accommodations that most pregnant employees will need, such as (1) carrying or keeping water near and drinking, as needed; (2) allowing additional restroom breaks, as needed; (3) allowing sitting for those whose work requires standing and standing for those whose work requires sitting, as needed; and (4) allowing breaks to eat and drink, as needed.

Whether an accommodation will cause an undue hardship is also based on a fact-specific determination, and the PWFA, like the ADA, requires employers to conduct individualized assessments in response to each request for a reasonable accommodation. For instance, the mere fact that an employee previously received an accommodation does not establish that it would impose an undue hardship on the employer to grant a new accommodation. Even where an employee’s requested accommodation may cause an undue hardship to the employer, the employer must still offer other reasonable accommodations.

Employers are not required to seek supporting documentation from employees requesting accommodation under the PWFA. Employers who decide to seek supporting documentation are limited to requiring reasonable documentation, meaning the minimum documentation sufficient to: (1) confirm the physical or mental condition; (2) confirm the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3) describe the change or adjustment needed at work due to the limitation. Moreover, employers are required to keep employees’ medical information confidential pursuant to the PWFA and ADA.

Employer compliance and prohibitions

The final rule prescribes additional considerations for covered entities in complying with the PWFA. For instance, an unnecessary delay in making a reasonable accommodation may result in a violation of the PWFA, even if the accommodation is eventually provided, where the delay was unnecessary. Additionally, an employee is not required to accept an accommodation, and an employer cannot require an employee to accept an accommodation other than one arrived at through the interactive process. Employers should take note of the following non-exclusive list of prohibitions under the PWFA:

• An employer cannot deny employment opportunities to a qualified employee if the denial is based on the employer’s need to make a reasonable accommodation for the known limitation of the employee.
• An employer cannot require a qualified employee with a known limitation to take leave, either paid or unpaid, if another reasonable accommodation exists, absent undue hardship.
• An employer cannot take adverse action in terms, conditions, or privileges of employment against a qualified employee because the employee requested or used a reasonable accommodation for a known limitation.
• An employer cannot retaliate against an employee because that person opposed acts or practices made lawful by the PWFA or has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under the PWFA.
• An employer cannot coerce, intimidate, threaten, or interfere with an individual in the exercise or enjoyment of rights under the PWFA or with any individual aiding or encouraging any other individual in the exercise or enjoyment of rights under the PWFA.

Related: Pregnant Workers Fairness Act: EEOC’s final rules include abortion accommodations

Benefits of the PWFA

The EEOC has identified five primary benefits of the final rule and the PWFA: (1) improvements in health for pregnant employees and their babies; (2) improvements in pregnant employees’ economic security; (3) non-discrimination and other intrinsic benefits; (4) clarity in enforcement and efficiencies in litigation; and (5) benefits for covered entities, such as employers saving money by not having to obtain and train new employees.

Next steps for employers

In anticipation of the regulation taking effect this year, employers should train supervisors on how to receive and respond to PWFA accommodation requests as well as review and update their employee handbooks to ensure that they are up to date on PWFA policies and other quickly changing employment-related laws. An experienced employment lawyer can be an asset in updating employer policies and helping employers avoid expensive mistakes.

Sara Kallop is an associate in RumbergerKirk’s Orlando office. She focuses her practice on complex commercial litigation, professional liability and family law. She also has experience litigating retaliation and whistleblower claims, defamation claims, and negligence claims.