By Yoon-Woo Nam, Danielle Shapiro, Christina Forte Meddin, Camille A. Olson, Karla Grossenbacher, and Lawrence Z. Lorber

Seyfarth Synopsis: On April 15, 2024, the EEOC issued its final regulation and interpretive guidance (“PWFA Regulations”) for the enforcement of the Pregnant Workers Fairness Act (“PWFA”), a law that took effect in June 2023. The PWFA supplements existing federal anti-discrimination law by requiring covered employers to provide reasonable accommodations to qualified employees or applicants with known limitations related to pregnancy, childbirth, or related medical conditions absent an undue hardship on the employer. The final regulation will go into effect on June 18, 2024 — 60 days from April 19, 2024.

Background

In December 2022, President Biden signed the PWFA into law, which thereafter went into effect on June 27, 2023. As of its effective date, the EEOC started accepting charges of discrimination alleging violations of the PWFA. In August 2023, the EEOC issued proposed PWFA regulations. On April 15, 2024, after considering the numerous comments it received to its proposed regulations, the EEOC issued its final regulation to carry out the PWFA that changed very little from the regulations it proposed in August 2023. While other federal laws may apply to employees or applicants affected by “pregnancy, childbirth or related medical conditions” – Title VII of the Civil Rights Act of 1964 (Title VII), the Pregnancy Discrimination Act of 1978 (“PDA”), and the Americans With Disabilities Act (“ADA”), as well as the Family and Medical Leave Act (FMLA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) – the PWFA is the first federal law enforced by the EEOC that requires employers to provide accommodations for medical conditions relating to a woman’s pregnancy, absent a showing of disability.

Importantly, the PWFA created a floor for the employer to provide reasonable accommodations to qualified employees or applicants; it does not preempt more protective federal, state or local laws. For example, at least 26 states have laws that clearly require employers to provide pregnancy accommodations. To the extent any of these laws overlap, or provide additional employee rights beyond those provided by the PWFA with respect to benefits for covered employees, the employer must follow the provisions of all applicable laws most favorable to the employee.

Important Definitions Under PWFA

In the final regulations, the EEOC did not back off its expansive definition of “related medical conditions” despite numerous comments urging it to do so. Under the PWFA Regulations, “pregnancy” and “childbirth” refer to current pregnancy, past pregnancy or potential and intended pregnancy, e.g., infertility, fertility treatment and contraception use. “Related medical conditions” are defined in the PWFA Regulations as medical conditions relating to pregnancy or childbirth of the specific employee seeking an accommodation. Covered related medical conditions can include complications related to the termination of the pregnancy such as miscarriage, stillbirth, abortion, and post-partum complications like anxiety, depression, incontinence, menstruation and lactation. The PWFA Regulations would also include reproductive health issues that are not directly related to an actual current, or recent pregnancy (although many commentators objected to this broad reading of the definition of “related medical conditions”): menstruation, use of birth control, endometriosis, incontinence, and infertility.

The PWFA coverage definitions for employers, employees, applicants, and former employees mirror those of Title VII. And like the ADA, an employer can limit the damages for a claim under the PWFA if it makes a good faith effort to meet the need for a reasonable accommodation.

Notably, the PWFA Regulations state that the EEOC will follow courts’ longstanding interpretation of the Title VII phrase “pregnancy, childbirth, or related medical conditions” to include abortion. Thus, an employer must engage in the interactive process and ultimately provide an accommodation to an employee with a known limitation related to abortion, unless such accommodation would cause an undue hardship on operations. However, the final rule makes it clear that the PWFA does not require employers to pay for abortions, provide transportation or otherwise cover costs incurred for abortions. This polarizing and politicized issue, along with the EEOC’s expanded interpretation of “related medical condition,” “temporary” and “in the near future” will result in an inevitable collision with state and local laws and be addressed in subsequent legal challenges. Many business and human resource groups who strongly supported the passage of the PWFA on a bi-partisan basis strongly opposed the EEOC’s draft definitions of “related medical condition,” “temporary,” and “in the near future” as contrary to the PWFA and its legislative intent. Those concerns were dismissed by the EEOC in the PWFA Regulations.

Additional Key Provisions of the Final Rule

Employers will also find certain terms and processes in the PWFA, such as “reasonable accommodations,” “interactive process,” and “undue hardship,” that resemble familiar concepts under the federal laws mentioned above. Understanding where the PWFA differs from this familiar terminology, however, is key for compliance moving forward.

Reasonable Accommodation

The accommodation process prescribed by the PWFA bears similarity to the familiar process for providing reasonable accommodations under the ADA. For example, under the PWFA, employers must make reasonable accommodations for “known limitations” of an employee or applicant, unless the accommodation would cause an undue hardship on the employer. According to the final rule issued by the EEOC, a “[l]imitation” under the PWFA constitutes any “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” The limitations can occur pre, during or post pregnancy and include fertility for and termination of the pregnancy. There is no requirement, however, that such physical or mental condition substantially limit a major life activity, as is the requirement under the ADA. The final rule explicitly states that employers may not require that an employee or applicant communicate the need for accommodation in writing.

“Temporary” and “In the Near Future”

Unlike the ADA, the PWFA Regulations require accommodation of employees who may not be qualified to perform the essential functions of the job, as long as their limitation is “temporary.” The final rule defines “temporary” as lasting for a limited time, not permanent, but may extend beyond “in the near future.” The PWFA Regulations suggest that limitations due to pregnancy will generally qualify as “temporary” as the finite nature of gestation means employees will be able to perform the essential function within approximately 40 weeks or less. In situations other than the actual term of the pregnancy, whether the employees can perform the essential functions in an acceptable timeframe under the PWFA must be determined on a case-by-case basis. The PWFA also requires that a leave of absence be only an accommodation of last resort; in other words, an employer may not require an employee to take a leave of absence if another accommodation is available that allows the employee to continue working.

Predictable Assessments

Employers should be aware that the PWFA Regulations categorize certain modifications to the job, often requested by pregnant employees, as “predictable assessments” of reasonable accommodation. Because employers criticized these predictable assessments as undermining the interactive discussion process, the EEOC added language to the final rule stating that, although entities must conduct case-by-case assessments, the EEOC believes that certain modifications will generally not impose an undue hardship, and therefore, should be granted by employers in virtually all situations. These modifications include: (1) allowing an employee to carry or keep water near and drink, as needed; (2) allowing an employee to take additional restroom breaks, as needed; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (4) allowing an employee to take breaks to eat and drink, as needed.

Documentation

The PWFA Regulations limit when employers may request supporting documentation for an accommodation arising out of pregnancy, childbirth, or related medical conditions. Specifically, the rule indicates that employers may only seek supporting documentation when it is reasonable under the circumstances for the employer to need said documentation to determine whether the employee has a limitation covered by the PWFA. However, when an employee’s pregnancy is obvious or known, and includes self-confirmation of the pregnancy by the employee, the PWFA Regulations suggest that the employer should not request supporting documentation before engaging in the interactive process. Furthermore, where the accommodation requested is one that is “simple, inexpensive, commonly sought” during an uncomplicated pregnancy, and where documentation would not be easily obtained, the PWFA Regulations similarly caution against requesting supporting documentation.

Finally, the final rule states that employers can only require documentation that is “reasonable,” meaning that it is sufficient to describe or confirm: (1) the physical or mental condition; (2) the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with (1) “a limitation”); and (3) the change or adjustment at work needed due to the limitation.

Recommendations

We recommend that employers update their policies and practices to ensure there is a process for accommodating applicants and employees with limitations relating to pregnancy, childbirth, or related medical conditions. We also recommend training for management and human resources teams to ensure awareness of these changes in the law. To stay up-to-date on pregnancy accommodation laws and developments, click here to sign up for General Labor & Employment Issues mailing list. Companies interested in Seyfarth’s paid pregnancy accommodation survey may view it here