EEOC Issues Final Regulations on the Pregnant Workers Fairness Act – Key Takeaways for Employers

The U.S. Equal Employment Opportunity Commission (EEOC) unveiled final regulations and guidance on the new federal Pregnant Workers Fairness Act (PWFA). The final regulations and guidance contain detailed guidance to help employers navigate the new law, which provides broad protections for workers who are pregnant or have a condition related to pregnancy or childbirth. The final regulations and guidance were published on April 19, 2024, and will take effect two months after publication.

As noted in our previous advisory, while the PWFA does not replace existing accommodation and leave laws that provide protections for pregnant employees, the PWFA provides protections to covered employees throughout the country with pregnancy- and childbirth-related limitations. Notably, the PWFA final regulations and guidance confirm that accommodation requirements and protections for qualifying employees have expanded beyond the Americans with Disabilities Act (ADA) protections – as the regulations explicitly require the temporary suspension of essential functions as a reasonable accommodation if the employee may be able to perform essential functions "in the near future." Below is an overview of the PWFA regulations and guidance, as well as key takeaways for employers.

PWFA Overview

The PWFA went into effect on June 27, 2023. The PWFA responds to the gaps in reasonable accommodation access for pregnant and nursing workers under existing federal laws, including the ADA, Title VII of the Civil Rights Act of 1964 (Title VII), and the Family and Medical Leave Act (FMLA). The PWFA requires private and public sector employers with at least 15 employees to provide reasonable accommodations to an employee's known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will impose an undue hardship on the employer. The PWFA also prohibits employers from denying job and employment opportunities to qualified employees and applicants, requires that employers engage in the interactive process, and prohibits employers from taking adverse action or retaliating because employees have requested accommodations or opposed unlawful practices.

As noted above, the EEOC published final regulations and guidance on April 19, 2024. The regulations will go into effect two months after publication.

Final Regulations Provide Broad Coverage for Known Limitations

The final regulations confirm there is broad coverage for "known limitations" arising out of pregnancy, childbirth, or related medical conditions that an employee or representative of an employee has communicated to their employer. Similar to the definitions initially proposed in the EEOC's draft regulations:

• "Limitation" means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions – including to maintain the health of an employee or their pregnancy.
• "Pregnancy" and "childbirth" are also defined broadly and include but are not limited to: current pregnancy; past pregnancy; potential or intended pregnancy, including infertility and fertility treatment and the use of contraception; labor; and childbirth.
• "Related medical conditions" are also defined broadly. The final regulations preserve an extensive list, including termination of pregnancy; anxiety, depression, psychosis, or postpartum depression; menstruation; and lactation and conditions related to lactation.

Qualified Individuals Include Those Who Cannot Perform Essential Functions for a "Temporary Period" if the Functions Can Be Resumed "In the Near Future"

The PWFA notably expands protections not only to qualified individuals who can perform the essential functions of their job, but also to employees who cannot perform essential function(s) of their job if the inability to perform the function is for a "temporary period" and the essential function(s) can be resumed "in the near future" (if the employee can be reasonably accommodated).

The regulations state that whether essential functions can be performed "in the near future" is determined on a case-by-case basis, however, if the employee is pregnant it is presumed that the employee can perform essential functions within 40 weeks of the temporary suspension of the essential functions. The EEOC guidance notes that for issues other than pregnancy, including some post-childbirth conditions, more than 40 weeks may be necessary. And the regulations and guidance confirm there may be situations where an individual with a physical or mental condition has an "actual" or "record of" disability under the ADA that is no longer related to pregnancy or childbirth but should still be evaluated under the ADA.

Temporary Suspension of Essential Functions May Be a Reasonable Accommodation

Under the ADA, covered employers are already required to reasonably accommodate qualified employees and applicants, unless the employer can prove that doing so would impose an "undue hardship." However, the final regulations confirm that potential PWFA reasonable accommodations include the temporary suspension of essential functions – which is a significant deviation from the ADA and equivalent state laws. Notably, the regulations clarify that a request to indefinitely suspend an essential function, however, is not "in the near future" and therefore cannot entitle an employee to an accommodation. The regulations identify various types of potential reasonable accommodations, such as modifications to the work environment or job application process or to otherwise enable a qualified employee to enjoy equal benefits and privileges of employment.

In addition, the final regulations maintain the general definition for "essential function" proposed in the draft regulations, as "the fundamental job duties of the employment position the employee holds or desires," and provide factors for evaluating whether a job function can be considered essential.

Regulations Provide a Process for Evaluating Undue Hardship and Provide a List of Presumptively Reasonable Accommodations

The final regulations also confirm a two-step process for evaluating undue hardship, including a secondary test if a qualified employee requests the temporary suspension of one or more essential functions. Notably, although there is a process set forth by the regulations to consider undue hardship, the regulations confirm whether a particular accommodation will impose an undue hardship for an employer is determined on a case-by-case basis.

Significantly the regulations also provide a list of modifications – termed "Predictable Assessments" – which will "in virtually all cases" be reasonable accommodations. This includes:

• Allowing an employee to carry water and drink as needed;
• Allowing an employee additional restroom breaks;
• Allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
• Allowing an employee breaks as needed to eat or drink.

Employers May Request Supporting Documentation During the Interactive Process

The final regulations also confirm that employers may seek supporting documentation from an employee who requests an accommodation under the PWFA only when it is "reasonable" under the circumstances to determine whether the employee has a physical or mental condition and needs an adjustment or change at work due to the limitation. This includes requesting documentation from the employee's healthcare provider. However, the regulations note that employers are encouraged to minimize documentation burdens on employees seeking accommodation(s) whenever possible and that it may take time for an employee to obtain a medical appointment and provide documentation. The regulations and guidance encourage employers to provide interim reasonable accommodation(s) while employees obtain documentation from their healthcare provider. Significantly, the regulations and guidance also note that "unnecessary delays" in responding to a request for a reasonable accommodation have the potential of violating the PWFA.

Non-Discrimination with Regard to Reasonable Accommodations

The PWFA prohibits employers from failing to make reasonable accommodations absent undue hardship. In addition to "unnecessary delays" in responding to a request for a reasonable accommodation violating the law, the final regulations also make clear that accommodations must be arrived at through the accommodation process; employers cannot require employees to take leave if another effective reasonable accommodation exists, absent undue hardship; and employers cannot take adverse action because the employee requested or used reasonable accommodations or otherwise deny employment opportunities.

Remedies

The final regulations confirm that the remedies available under the PWFA are enforced through Title VII. Covered employees may file complaints with the relevant federal agency, which will conduct an investigation, and the EEOC will process appeals using the same process set out in Title VII.

Takeaways

1. The PWFA regulations and guidance go into effect two months after publication (April 19, 2024). Employers should become familiar with regulations and guidance and use them in navigating pregnancy- and childbirth-related accommodation requests.
2. Employers should be mindful in navigating the accommodation process with employees, keeping in mind that the PWFA has a broad definition of "qualified employee" and protects employees who cannot perform an essential function of their job if the limitation is temporary and they can resume it "in the near future" – which, means that employers may be required to temporarily suspend essential functions for qualifying individuals as reasonable accommodations.
3. In addition, employers should understand there is broad coverage of pregnancy- and childbirth-related conditions, and of underlying conditions exacerbated by pregnancy and childbirth – including mental health conditions, fertility treatment, and terminations of pregnancy.
4. The regulations set forth a detailed process for engaging in the interactive process and evaluating accommodation requests, including a process to determine if the temporary suspension of essential functions may be a reasonable accommodation.
5. Employers should also be aware there are limitations imposed in connection with requesting medical documentation during the interactive process and that the regulations encourage employers to provide interim accommodations while awaiting requested supporting documentation.
6. The regulations identify several presumptive reasonable accommodations, which will "in virtually all cases" be reasonable accommodations. This is similar to some existing state laws—including Washington's Healthy Start Law—which require employers to provide certain pregnancy- and childbirth-related accommodations.
7. Employers should carefully review their current policies and practices to ensure compliance with the PWFA.
8. Additionally, employers should train their managers and supervisors to recognize pregnancy- and childbirth-related requests in order to ensure that requests are promptly addressed to avoid a potential violation, including providing interim accommodations while waiting for reasonable supporting documentation.