Seyfarth Synopsis: On April 15, 2024, the
EEOC issued its final regulation and interpretive guidance
(“PWFA Regulations”) for the enforcement of the Pregnant
Workers Fairness Act (“PWFA”), a law that took effect in
June 2023. The PWFA supplements existing federal
anti-discrimination law by requiring covered employers to provide
reasonable accommodations to qualified employees or applicants with
known limitations related to pregnancy, childbirth, or related
medical conditions absent an undue hardship on the employer. The
final regulation will go into effect on June 18, 2024 — 60
days from April 19, 2024.
Background
In December 2022, President Biden signed the PWFA into law,
which thereafter went into effect on June 27, 2023. As of its
effective date, the EEOC started accepting charges of
discrimination alleging violations of the PWFA. In August 2023, the
EEOC issued proposed PWFA regulations. On April 15, 2024, after
considering the numerous comments it received to its proposed
regulations, the EEOC issued its final regulation to carry out the
PWFA that changed very little from the regulations it proposed in
August 2023. While other federal laws may apply to employees or
applicants affected by “pregnancy, childbirth or related
medical conditions” – Title VII of the Civil Rights Act
of 1964 (Title VII), the Pregnancy Discrimination Act of 1978
(“PDA”), and the Americans With Disabilities Act
(“ADA”), as well as the Family and Medical Leave Act
(FMLA) and the Providing Urgent Maternal Protections for Nursing
Mothers Act (“PUMP Act”) – the PWFA is the first
federal law enforced by the EEOC that requires employers to provide
accommodations for medical conditions relating to a woman’s
pregnancy, absent a showing of disability.
Importantly, the PWFA created a floor for the employer to
provide reasonable accommodations to qualified employees or
applicants; it does not preempt more protective federal, state or
local laws. For example, at least 26 states have laws that clearly
require employers to provide pregnancy accommodations. To the
extent any of these laws overlap, or provide additional employee
rights beyond those provided by the PWFA with respect to benefits
for covered employees, the employer must follow the provisions of
all applicable laws most favorable to the employee.
Important Definitions Under PWFA
In the final regulations, the EEOC did not back off its
expansive definition of “related medical conditions”
despite numerous comments urging it to do so. Under the PWFA
Regulations, “pregnancy” and “childbirth” refer
to current pregnancy, past pregnancy or potential and intended
pregnancy, e.g., infertility, fertility treatment and contraception
use. “Related medical conditions” are defined in the PWFA
Regulations as medical conditions relating to pregnancy or
childbirth of the specific employee seeking an accommodation.
Covered related medical conditions can include complications
related to the termination of the pregnancy such as miscarriage,
stillbirth, abortion, and post-partum complications like anxiety,
depression, incontinence, menstruation and lactation. The PWFA
Regulations would also include reproductive health issues that are
not directly related to an actual current, or recent pregnancy
(although many commentators objected to this broad reading of the
definition of “related medical conditions”):
menstruation, use of birth control, endometriosis, incontinence,
and infertility.
The PWFA coverage definitions for employers, employees,
applicants, and former employees mirror those of Title VII. And
like the ADA, an employer can limit the damages for a claim under
the PWFA if it makes a good faith effort to meet the need for a
reasonable accommodation.
Notably, the PWFA Regulations state that the EEOC will follow
courts’ longstanding interpretation of the Title VII phrase
“pregnancy, childbirth, or related medical conditions” to
include abortion. Thus, an employer must engage in the interactive
process and ultimately provide an accommodation to an employee with
a known limitation related to abortion, unless such accommodation
would cause an undue hardship on operations. However, the final
rule makes it clear that the PWFA does not require employers to pay
for abortions, provide transportation or otherwise cover costs
incurred for abortions. This polarizing and politicized issue,
along with the EEOC’s expanded interpretation of “related
medical condition,” “temporary” and “in the
near future” will result in an inevitable collision with state
and local laws and be addressed in subsequent legal challenges.
Many business and human resource groups who strongly supported the
passage of the PWFA on a bi-partisan basis strongly opposed the
EEOC’s draft definitions of “related medical
condition,” “temporary,” and “in the near
future” as contrary to the PWFA and its legislative intent.
Those concerns were dismissed by the EEOC in the PWFA
Regulations.
Additional Key Provisions of the Final Rule
Employers will also find certain terms and processes in the
PWFA, such as “reasonable accommodations,”
“interactive process,” and “undue hardship,”
that resemble familiar concepts under the federal laws mentioned
above. Understanding where the PWFA differs from this familiar
terminology, however, is key for compliance moving forward.
Reasonable Accommodation
The accommodation process prescribed by the PWFA bears
similarity to the familiar process for providing reasonable
accommodations under the ADA. For example, under the PWFA,
employers must make reasonable accommodations for “known
limitations” of an employee or applicant, unless the
accommodation would cause an undue hardship on the employer.
According to the final rule issued by the EEOC, a
“[l]imitation” under the PWFA constitutes any
“physical or mental condition related to, affected by, or
arising out of pregnancy, childbirth, or related medical
conditions.” The limitations can occur pre, during or post
pregnancy and include fertility for and termination of the
pregnancy. There is no requirement, however, that such physical or
mental condition substantially limit a major life activity, as is
the requirement under the ADA. The final rule explicitly states
that employers may not require that an employee or applicant
communicate the need for accommodation in writing.
“Temporary” and “In the Near Future”
Unlike the ADA, the PWFA Regulations require accommodation of
employees who may not be qualified to perform the essential
functions of the job, as long as their limitation is
“temporary.” The final rule defines “temporary”
as lasting for a limited time, not permanent, but may extend beyond
“in the near future.” The PWFA Regulations suggest that
limitations due to pregnancy will generally qualify as
“temporary” as the finite nature of gestation means
employees will be able to perform the essential function within
approximately 40 weeks or less. In situations other than the actual
term of the pregnancy, whether the employees can perform the
essential functions in an acceptable timeframe under the PWFA must
be determined on a case-by-case basis. The PWFA also requires that
a leave of absence be only an accommodation of last resort; in
other words, an employer may not require an employee to take a
leave of absence if another accommodation is available that allows
the employee to continue working.
Predictable Assessments
Employers should be aware that the PWFA Regulations categorize
certain modifications to the job, often requested by pregnant
employees, as “predictable assessments” of reasonable
accommodation. Because employers criticized these predictable
assessments as undermining the interactive discussion process, the
EEOC added language to the final rule stating that, although
entities must conduct case-by-case assessments, the EEOC believes
that certain modifications will generally not impose an undue
hardship, and therefore, should be granted by employers in
virtually all situations. These modifications include: (1) allowing
an employee to carry or keep water near and drink, as needed; (2)
allowing an employee to take additional restroom breaks, as needed;
(3) allowing an employee whose work requires standing to sit and
whose work requires sitting to stand, as needed; and (4) allowing
an employee to take breaks to eat and drink, as needed.
Documentation
The PWFA Regulations limit when employers may request supporting
documentation for an accommodation arising out of pregnancy,
childbirth, or related medical conditions. Specifically, the rule
indicates that employers may only seek supporting documentation
when it is reasonable under the circumstances for the employer to
need said documentation to determine whether the employee has a
limitation covered by the PWFA. However, when an employee’s
pregnancy is obvious or known, and includes self-confirmation of
the pregnancy by the employee, the PWFA Regulations suggest that
the employer should not request supporting documentation before
engaging in the interactive process. Furthermore, where the
accommodation requested is one that is “simple, inexpensive,
commonly sought” during an uncomplicated pregnancy, and where
documentation would not be easily obtained, the PWFA Regulations
similarly caution against requesting supporting documentation.
Finally, the final rule states that employers can only require
documentation that is “reasonable,” meaning that it is
sufficient to describe or confirm: (1) the physical or mental
condition; (2) the physical or mental condition is related to,
affected by, or arising out of pregnancy, childbirth, or related
medical conditions (together with (1) “a limitation”);
and (3) the change or adjustment at work needed due to the
limitation.
Recommendations
We recommend that employers update their policies and practices
to ensure there is a process for accommodating applicants and
employees with limitations relating to pregnancy, childbirth, or
related medical conditions. We also recommend training for
management and human resources teams to ensure awareness of these
changes in the law.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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