EEOC Issues Final Rule Implementing The Pregnant Workers Fairness Act – Employee Rights/ Labour Relations

The Pregnant Workers Fairness Act (PWFA) was enacted last year
with the purpose of protecting pregnant workers from discrimination
and providing them with a right to reasonable accommodations in the
workplace. On April 15, 2024, the Equal Employment Opportunity
Commission (EEOC) published its Final Rule setting forth expansive
regulations implementing the law. The Final Rule becomes effective
June 18, 2024.

The PWFA requires employers with 15 or more employees to make
reasonable accommodations to the known limitations of employees and
applicants related to pregnancy, childbirth, or related medical
conditions, unless doing so would result in undue hardship.
Employers are also prohibited from denying employment opportunities
to employees based on their need for reasonable accommodations
under the PWFA, forcing employees to take leave in lieu of
providing reasonable accommodations, coercing employees to accept
reasonable accommodations that were not arrived at through an
interactive process, or retaliating against employees for asserting
their rights under the PWFA by seeking accommodations for
conditions related to pregnancy, childbirth, or related medical
conditions.

In the Final Rule, the EEOC elaborates on what conditions fall
within the scope of “known limitations related to the
pregnancy, childbirth, or related medical conditions of a qualified
employee.” The Final Rule explains that a
“limitation” need not rise to the level of a
“disability” under the Americans with Disabilities Act
(“ADA”), and instead can be “modest, minor, and/or
episodic.”

Aside from carrying and birthing a child, the Final Rule
provides that “pregnancy” and “childbirth” also
applies to potential or intended pregnancies, including
pre-pregnancy medical needs related to infertility, fertility
treatment, and the use of contraception. The Final Rule clarifies
that “related medical condition” likewise has a broad
definition and includes numerous physical and mental conditions of
pregnancy such as abortion, miscarriage, stillbirth, gestational
diabetes, ectopic pregnancy, preeclampsia, chronic migraines, high
blood pressure, antenatal anxiety and depression, postpartum
depression, lactation, and preexisting conditions exacerbated by
pregnancy.

The EEOC’s inclusion of abortion in “related medical
condition” is both notable and controversial. The EEOC
received significant resistance during the notice-and-comment
period regarding its inclusion of abortion in the definition.
Employers should be aware that the Final Rule requires them to
provide reasonable accommodations to qualified employees seeking
abortion procedures absent an undue hardship, including potentially
time off for employees who must travel to other states to receive
abortion care.

The Final Rule also elaborated on the PWFA’s definition of
“qualified,” which is a significant departure from the
familiar ADA framework. The PWFA provides that an employee is
“qualified” even if they cannot perform one or more
essential functions of the job if the inability to perform an
essential function is for a temporary period, the essential
function could be performed in the near future, and the inability
to perform the essential function can be reasonably
accommodated.

The PWFA did not define “temporary” or “in the
near future,” but the Final Rule explains that
“temporary” means “lasting for a limited time, not
permanent, and may extend beyond ‘in the near
future.'” In turn, “in the near future” is
presumed to be 40 weeks (the length of an average pregnancy) if the
employee seeking accommodation is currently pregnant; however, the
EEOC did not specify a specific length of time for employees who
are not currently pregnant (such as employees who are recently
post-partum). Moreover, these definitions govern only whether the
employee is “qualified”—employers can still
separately evaluate whether removing an essential function for the
requested length of time is “reasonable” or causes an
“undue hardship.”

The Final Rule also elaborated on what accommodations may be
deemed “reasonable” under the PWFA and provided a
non-exhaustive list of examples of possible reasonable
accommodations:

• Job restructuring




• Part time or modified work schedules




• Reassignment to a vacant position




• More frequent breaks




• Acquisition or modification of equipment, uniforms, or
  devices




• Providing seating for jobs that require standing, or allowing
  standing for jobs that require sitting




• Adjustment or modifications of examinations or policies




• Paid or unpaid leave




• Light or modified duty




• Telework/remote work




• Adjustments to allow the employee to work without increased
  pain or risk to the employee’s health or the health of the
  pregnancy




• Temporarily suspending one or more essential functions




• Providing a reserved parking space

Further, the Final Rule provides that “in virtually all
cases” the following accommodations will be reasonable and
will not impose an undue hardship when requested by a pregnant
employee:

• Allowing an employee to carry or keep water near and drink, as
  needed




• Allowing an employee to take additional restroom breaks, as
  needed




• Allowing an employee whose work requires standing to sit, and
  whose work requires sitting to stand, as needed




• Allowing an employee to take breaks to eat and drink, as
  needed

The Final Rule goes into effect on June 18, 2024, and also
covers other topics not addressed in this alert. Stites &
Harbison employment attorneys can advise you regarding your
obligations under the Pregnant Workers Fairness Act and the Final
Rule, assist with training managers and human resource
professionals, and help you defend against PWFA actions.

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.