PREGNANT WORKERS FAIRNESS ACT: EEOC’S FINAL RULE AND TIPS FOR PEOS

The Pregnant Workers Fairness Act (the “PWFA”) requires covered employers to make reasonable accommodations to qualified employees or applicants known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions unless doing so would cause undue hardship on business operations. The PWFA includes the reasonable accommodation of employees or applicants who are temporarily unable to perform their essential job functions. The PWFA went into effect on June 27, 2023, and the Equal Employment Opportunity Commission (EEOC) released the text of its final rule on the PWFA on April 15, 2024. On June 18, 2024, the EEOC’s final rule interpreting the PWFA went into effect.

Shortly after the EEOC’s final rule release, however, lawsuits were filed in several states challenging the EEOC’s interpretation of the PWFA. Many challenges relate to reasonable accommodations for elective abortions, and the challenges to the final rule will likely continue. That said, the EEOC’s final rule is in full effect in almost every state. As such, employers and PEOs must ensure they follow the accommodation requirements of the PWFA as interpreted by the EEOC’s final rule and check individual state guidelines while staying abreast of further challenges to the final rule.

QUALIFIED EMPLOYEES

The PWFA has two definitions of a “qualified employee.” First, “an employee or applicant who, with or without a reasonable accommodation, can perform the essential functions of the position” is qualified. Moreover, an employee (or applicant) who cannot perform all essential job functions, even with a reasonable accommodation, can be qualified for accommodations under the PWFA if: (1) the inability to perform the essential job function(s) is temporary; (2) the essential job function(s) could be performed in the near future; and (3) the inability to perform the essential functions can be reasonably accommodated.

The EEOC’s final rule clarifies that assessing whether an employee can perform essential job functions depends on individual circumstances, including: (1) “In the near future” generally means 40 weeks from the start of the temporary suspension of the essential function for individuals who are currently pregnant; and (2) For conditions other than current pregnancy, “in the near future” is not defined by any one length of time. Even so, the final rule says indefinite leave cannot mean an individual can perform essential functions “in the near future.” Unlike with the Americans with Disabilities Act (“ADA”), employers and PEOs must evaluate whether the temporary elimination of essential job functions can be reasonably accommodated by the employer and PEO.

REQUIREMENTS

Employers and PEOs are required to provide reasonable accommodations to an individual’s “known limitation” related to, affected by, and arising out of pregnancy, childbirth, or related medical conditions. The EEOC’s final rule clarifies the limitation must be specific to the employee and does not require the accommodation of a partner, spouse, or family member.

Despite receiving many comments on the scope of the proposed definitions of “pregnancy, childbirth, or related medical conditions,” the EEOC’s final rule made no substantive changes to the definitions. As such, “pregnancy” and “childbirth” are defined as including current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatments, and the use of contraception), labor, and childbirth (including vaginal and cesarean delivery). “Related medical conditions” is defined as conditions that are “related to, are affected by, or arise out of pregnancy or childbirth.” The regulations provide the following non-exhaustive list of examples:

• Termination of pregnancy, including miscarriage, stillbirth, or abortion;
• Lactation and conditions related to lactation;
• Menstruation;
• Postpartum depression, anxiety, or psychosis;
• Vaginal bleeding;
• Preeclampsia;
• Pelvic prolapse;
• Preterm labor;
• Ectopic pregnancy;
• Gestational diabetes;
• Cesarean or perineal wound infection;
• Maternal cardiometabolic disease;
• Endometriosis;
• Changes in hormone levels; and
• Other conditions.

The EEOC’s final rule also refers to general conditions related to pregnancy or childbirth or exacerbated by pregnancy or childbirth, including, but not limited to, chronic migraine headaches, nausea or vomiting, high blood pressure, incontinence, and carpal tunnel syndrome.

Employers and PEOs are not required to seek supporting documentation from an employee or applicant who requests an accommodation under the PWFA. If an employer or PEO requests supporting documentation, it can only do so if such request is reasonable. The EEOC’s final rule defines “reasonable documentation” as the minimum documentation sufficient to: (1) confirm the physical or mental condition; (2) confirm the physical or mental condition relates to, is affected by, or arises out of pregnancy, childbirth, or related medical conditions; and (3) describe the change or adjustment at work needed because of the limitation. The EEOC’s final rule also sets out examples for when it is not reasonable to require supporting documentation for an accommodation request.

UNDUE HARDSHIP

According to the EEOC’s final rule, when an employee can perform all of the essential functions, undue hardship under the PWFA has the same meaning as undue hardship under the ADA, which generally means significant difficulty or expense.

If an employee cannot perform all the essential functions of his or her job and the accommodation involves the temporary suspension of essential job functions, employers and PEOs must consider the ADA’s definition of undue hardship and the following factors:

• The amount of time the employee or applicant will be unable to perform the essential functions;
• Whether there is work for the employee to accomplish by allowing the employee to perform all the other functions of the job, transferring the employee to a different position, or otherwise;
• The nature of the essential job function, including, but not limited to, frequency;
• Whether the covered entity has temporarily suspended the performance of the essential job functions for other employees in similar positions;
• Whether there are other individuals who can perform or be temporarily hired to perform the essential functions; and
• Whether the essential functions can be postponed or remain unperformed for any length of time and for how long.

Moreover, the EEOC’s final rule recognizes several accommodations that can in almost all cases be found not to impose an undue hardship when requested by a pregnant employee. These “predictable assessments” include:

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

The EEOC clarified this does not mean predictable assessment accommodation requests are automatically reasonable or they do not cause an undue hardship in certain industries. As such, employers and PEOs must still conduct an individualized assessment of predictable assessment accommodation requests.

PRACTICAL ADVICE FOR PEOS

Apart from the EEOC’s final rule, the EEOC released guidance and other resources on the PWFA. PEOs may reference the guidance to equip themselves with resources and information specific to industries they support.

PEOs may review and update any reasonable accommodation policies, as needed. The PWFA does not invalidate or limit the powers, remedies, or procedures available under any federal, state, or local laws that provide greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions. As such, PEOs should evaluate whether state and/or local law may provide further rights and obligations to employees. The EEOC’s final rule requires compliance with both the PWFA and analogous state and local law.

PEOs may wish to train human resources professionals, management, supervisors, and other leaders on the PWFA, as well as policies and practices with respect to the law. Leaders should be able to recognize requests that are related to pregnancy, childbirth, or related medical conditions and be equipped to efficiently manage them.

PEOs may consider creating a process (similar to the ADA) for employees to follow when requesting pregnancy-related accommodations under the PWFA.

Given potential ongoing challenges to the EEOC’s final rule on the PWFA and conflicting decisions, PEOs should check individual state guidelines and stay abreast of further challenges to the final rule.

This article is designed to give general and timely information about the subjects covered. It is not intended as legal advice or assistance with individual problems. Readers should consult competent counsel of their own choosing about how the matters relate to their own affairs.