EEOC Issues Final Guidance on Pregnancy Workers Fairness Act

As noted in AFS’s previous alerts (here and here), the PWFA, which went into effect on June 27, 2023, requires employers with 15 or more employees to provide reasonable accommodations for an employee or applicant’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations would cause the employer an undue hardship. 

Key Takeaways For Employers

1. The EEOC has taken an expansive interpretation of the PWFA. Most notably, the definition of “pregnancy, childbirth, or related medical condition” is interpreted to include, among other things, menstruation; current, past, and potential pregnancy; and, controversially, having or choosing not to have an abortion.
2. Unlike under the Americans with Disabilities Act (ADA), an employee may still be “qualified” under the PWFA even if they cannot perform an essential function of their role on a temporary basis. Similarly, the limitation or condition does not need to be a “disability” as defined by the ADA.
3. An employer is only permitted to seek supporting documentation when an employee requests reasonable accommodation under the PWFA, and only if it is reasonable under the circumstances. Further, unnecessary delay in providing a reasonable accommodation may amount to denial of the accommodation, violating of the PWFA.
4. The PWFA includes a “good faith” limitation on monetary damages for violations of its reasonable accommodation provision.
5. The final rule for the PWFA will become effective on June 18.

Details on the Final Rule

The EEOC’s final rule, which spans more than 400 pages, includes certain notable differences from the proposed rule, as follows:

1. Definitions

• The PWFA provides protection for a “known limitation.” As in the proposed rule, the final rule interprets this to mean that the employee has communicated the limitation to the employer. 
• “Pregnancy, childbirth, or related medical condition” is interpreted remarkably broadly to include, for example:
  • Endometriosis.
  • Infertility or fertility treatments.
  • Miscarriages or stillbirth.
  • Current pregnancy, past pregnancy, potential pregnancy.
  • Lactation.
  • Use of contraception.
  • Menstruation.
  • Having or choosing not to have an abortion.

Notably, under the final rule, the pregnancy, childbirth, or related medical conditions does not need to be the sole, the original, or a substantial cause of the physical or mental condition at issue in order for the physical or mental condition to be “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” In other words, this is an extremely lenient standard.

• “Qualified” means that the employee either (1) can perform the essential functions of the job (the ADA standard), or (2) cannot perform the essential functions of the job, but this inability is “temporary” and could be performed “in the near future.” The final rule tracks the proposed rule in defining “temporary” as lasting for a limited time, not permanent, and may extend beyond “in the near future.” A pregnant employee is assumed to be able to perform the essential functions in the near future, since they could do so within 40 weeks. The final rule departs from the proposed rule, however, in stating that for a non-pregnant employee protected under the PWFA, the “near future” analysis will be determined on a case-by-case basis.

Perhaps the most controversial definition in the final rule is the inclusion of “having or choosing not to have an abortion” in the protected category definition. In particular, there has already been backlash from Republicans and certain religious groups who argue that the law’s protections should not extend to workers who choose to have abortions or take birth control.

2. Reasonable Accommodations

Both the proposed rule and the final rule include a list of possible reasonable accommodations under the PWFA, including:

• Frequent breaks.
• Sitting or standing.
• Schedule changes, part-time work, and paid and unpaid leave.
• Telework.
• Parking.
• Light duty.
• Making existing facilities accessible or modifying the work environment.
• Job restructuring.
• Temporarily suspending one or more essential functions.
• Acquiring or modifying equipment, uniforms, or devices.
• Adjusting or modifying examinations or policies.

An accommodation allowing for the temporary suspension of an essential function is a departure from the standard under the ADA. Both the proposed rule and the final rule, however, outline specific factors to be considered in determining whether a temporary suspension causes an undue hardship.

The following “simple modifications” (referred to in the rule as “predictable assessments”) will generally be found to be reasonable accommodations that do not impose an undue hardship:

• 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 also provides additional factors that employers should consider when determining whether an accommodation poses an “undue hardship.” Those additional factors include:

• The length of time the employee will be unable to perform the function.
• Whether there is other work available for the employee.
• the nature and frequency of the function.
• Whether the employer has provided other employees in similar positions with temporary suspensions.
• Whether other employees or temporary employees can perform or be hired to perform the function.
• Whether the function can be postponed or remained unperformed for a length of time.

To request an accommodation, the employee “must identify the limitation (the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions) and that the employee needs an adjustment or change at work due to the limitation.” Similar to the ADA, the request may be made either in writing or verbally.

An unnecessary delay in making a reasonable accommodation may itself be a violation of the PWFA. A best practice is therefore to offer an interim accommodation while the interactive process is completed. Failure to provide one of the predictable assessments listed above will generally result in a finding of unnecessary delay. 

The PWFA also prohibits an employer from requiring a qualified employee with a known limitation to take leave, either paid or unpaid, if another effective reasonable accommodation exists, absent undue hardship and unless the employee requests a leave of absence.

3. Supporting Documentation

Neither the proposed rule nor the final rule requires an employer to seek supporting documentation from an employee or applicant requesting an accommodation under the PWFA. Indeed, both rules state that an employer may only seek supporting documentation if it is reasonable to do so under the circumstances. The final rule, like the proposed rule, provides examples of when it would not be reasonable to request supporting documentation:

• When the limitation and need for a reasonable accommodation is obvious.
• When the employer already has sufficient information.
• When the request is for a predictable assessment.
• When the request is for a lactation accommodation.
• When the employer’s policy or practice permits employees without known limitations under the PWFA to receive the requested modification without submitting supporting documentation.

The final rule also departs from the proposed rule in defining “reasonable documentation” to mean the minimum documentation that is sufficient to (1) “confirm the physical or mental condition; (2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with ‘a limitation’); and (3) describe the change or adjustment at work needed due to the limitation.”

What Should Employers Do Now?

Employers may want to review their current policies and procedures to ensure compliance with the requirements of the final rule. They may also consider offering additional training to human resources professionals who will be handling requests for accommodations under the PWFA, particularly in light of the important differences between these requests and those under the ADA. Employers should work closely with experienced employment counsel to ensure that all requirements under the final rule are met by June 18.