EEOC Delivers Final Rule Implementing the Pregnant Workers Fairness Act

The U.S. Equal Employment Opportunity Commission's (EEOC) issued its much-awaited final rule implementing the Pregnant Workers Fairness Act (PWFA) on April 15, 2024. The PWFA requires employers to provide pregnant workers or workers who have a condition related to pregnancy or childbirth with reasonable accommodations unless doing so would impose an "undue hardship" on the employer's business. The regulation takes effect on June 18, 2024. Holland & Knight reported on the EEOC's issuance of the proposed regulations last summer.

Broad Coverage of Conditions

The EEOC's final regulations explain that the rule maintains a broad definition of pregnancy, childbirth or related medical conditions. Under the PWFA, employers would be required to accommodate these conditions regardless of the levels of severity of the conditions; there is no requirement that the conditions rise to the level of disability applied under the Americans with Disabilities Act (ADA). This broad definition includes infertility, menstruation, endometriosis, fertility treatments, miscarriages and abortions.

With respect to employees choosing to undergo an abortion procedure, employers are not required to provide or pay for the procedure or travel-related expenses, but they are required to accommodate the necessary time off for the procedure and recovery. Critics have challenged the EEOC's decision to include abortion within the conditions covered by the PWFA and that employers are required to accommodate under the regulations.

Predictable Assessments and Documentation Requests in the Interactive Process

The final rule also states that an employer's request that an employee provide supporting documentation for certain "predictable assessments" related to pregnancy could be a violation of the PWFA. Specifically, an employer should request supporting documentation where reasonable under the circumstances (e.g., the need for the requested accommodation is not typical or apparent). The final rule lists certain accommodations for which it is never reasonable to request documentation, including:

• carrying or keeping water near and drinking as needed
• allowing additional restroom breaks as needed
• allowing sitting for those whose work requires standing, and standing for those whose work requires sitting as needed
• allowing breaks to eat and drink as needed

Where there is a known limitation and the need for reasonable accommodation is obvious, and the employee confirms the obvious limitation and need for reasonable accommodation, requesting documentation from the employee is not reasonable. Further, if the requested accommodation is available to employees under existing policies or practices, documentation should not be requested.

The final rule states that an employer's delay in providing the accommodations identified as predictable assessments "will virtually always result in a finding of unnecessary delay" and a violation of the PWFA. This is a departure from ADA-related guidance, which requires an interactive process.

Notably, although the EEOC considered in its proposed rule that providing these "predictable assessments" would never constitute an undue hardship for an employer, it omitted that provision in the final rule, which suggests that a condensed interactive process that does not result in any appreciable delay in providing a necessary accommodation still is permitted.

Suspension of Essential Job Functions May Be Required

In a material departure from the ADA's approach to accommodations, the final regulations contemplate temporarily relieving an employee of her essential job functions as a form of accommodation.

In the final rule, an employee or applicant still is "qualified" even if 1) they cannot perform one or more essential functions of the job on a "temporary" basis, 2) the worker could perform the essential function(s) "in the near future" and 3) the inability to perform the essential functions can be reasonably accommodated. The final rule defines "in the near future" as generally 40 weeks from the start of the temporary suspension of an essential function.

This does not mean that the essential functions must always be suspended for 40 weeks, or if an employee seeks the temporary suspension of essential functions for 40 weeks, it must be automatically granted. The length of the temporary suspension of the essential functions depends on what the employee requires and what would cause an undue hardship on the employer.

Further highlights from the final rule include:

• examples of reasonable accommodations that could be required to be provided include additional breaks, a stool to sit on while working, time off for medical appointments, temporary suspension of certain job duties, telework or time off to recover from childbirth or a miscarriage
• guidance surrounding the types of medical conditions employees may seek reasonable accommodations for, including miscarriage or still birth, lactation and pregnancy-related conditions that are episodic, such as morning sickness and migraines
• explanation of when an accommodation would impose an undue hardship on an employer and its business
• information regarding when employers may be required to suspend essential job functions for certain employees facing pregnancy-related limitations while they are working, even if they cannot conduct those functions with reasonable accommodations
• information on how employers may assert defenses or exemptions, including those based on religion

Limited Injunction Likely Does Not Prohibit Enforcement Against Private Employers

There currently is an injunction barring the PWFA's enforcement against the state of Texas and its agencies because the U.S. House of Representatives lacked a quorum during the vote to pass the Consolidated Appropriations Act of 2023, which contained the PWFA. Some commentators believe that this injunction prevents the enforcement of the PWFA nationwide, but this is not a universally shared assessment. Accordingly, employers (other than the state of Texas and its agencies) should proceed with the expectation that the PWFA and its final regulations are in full force and effect.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.