EEOC Publishes Final Regulations on the Pregnant Workers Fairness Act

On April 15, the EEOC issued its final regulations interpreting the Pregnant Workers Fairness Act, a law that became effective on June 27, 2023. The regulations will take effect on June 18, 2024.

Background

The Pregnant Workers Fairness Act (PWFA) requires covered employers to offer reasonable accommodations to qualified employees for their known limitations due to pregnancy, childbirth, or related medical conditions, unless an accommodation would pose an undue hardship.

Following the PWFA’s enactment, the Equal Employment Opportunity Commission (EEOC) published proposed regulations on August 11, 2023. By the end of the 60-day public notice and comment period, the EEOC had received nearly 100,000 comments on those proposed regulations. According to the EEOC, the final regulations (final regulations or final rule) and accompanying interpretive guidance are meant to provide clarity to employers by defining key terms and provisions and providing hypothetical scenarios that employers can use to guide their decision-making process.

Key Takeaways

The EEOC’s regulations are extensive and, in many respects, expand employers’ obligations to accommodate pregnancy-related conditions well beyond what the Americans with Disabilities Act (ADA) requires for disabilities. It is therefore prudent for employers to discuss with counsel how the regulations will impact their existing accommodation processes, as well as the accommodation needs of their particular employees. In the meantime, below are some key takeaways from the final rule.

Broad Definition of Covered Conditions

The PWFA requires employers to offer reasonable accommodations for employees’ “known limitations” related to “physical or mental condition(s) related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” The conditions that qualify for accommodations under the PWFA go well beyond pregnancy-related disabilities. The EEOC has interpreted conditions related to pregnancy and childbirth broadly to include “current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatments, and the use of contraception) and labor and childbirth (including vaginal delivery and cesarean section.” Notably, pregnancy-related limitations also include “a need or a problem related to maintaining a pregnant employee’s health or the health of the pregnancy.” For example, the regulations provide that an employer may be required to accommodate an employee who asks to limit exposure to secondhand smoke to protect the health of their pregnancy.

The EEOC has also defined “related medical conditions” broadly. Some examples of related conditions the EEOC has identified include breastfeeding and pumping, low milk supply, plugged ducts, miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, HELLP (hemolysis, elevated liver enzymes, and low platelets) syndrome, ectopic pregnancy, nerve injuries, cesarean or perineal wound infection, anemia, endometriosis, sciatica, lumbar lordosis, carpal tunnel syndrome, dehydration, hemorrhoids, nausea, anxiety, postpartum depression, frequent urination, change in hormone levels, and menstruation. The rule makes clear that this list is nonexhaustive and includes conditions that may be “modest, minor, or episodic.”

Examples of Reasonable Accommodations

The regulations confirm that the term “reasonable accommodation” has the same meaning under the PWFA that it does under the ADA. Thus, reasonable accommodations under the PWFA include modifications or adjustments to the job application process and work environment or the manner or circumstances under which the employee’s job is performed. Many of the potential accommodations that the EEOC has listed in the regulations are also consistent with the accommodations that employers must already consider for employees with disabilities under the ADA. They include:

• More frequent work breaks
• Seating for jobs that generally require standing and standing for jobs that generally require sitting
• Schedule changes or reduction in hours
• Paid or unpaid leave
• Remote work
• A reserved parking space
• Light duty
• Worksite modifications to make facilities or the work environment more accessible
• Job restructuring
• Equipment, uniforms, or devices

With respect to lactation, the regulations provide that employers must provide breaks and a sufficient workspace to employees who need to pump. They may also require employers to permit employees to nurse during the workday if the employee’s child is in close proximity because, for example, the employee is already working from home or the child is at an onsite daycare.

Temporary Suspension of Essential Functions

In a notable departure from the ADA, however, the PWFA may require employers to temporarily suspend the essential functions of an employee’s job to accommodate a pregnancy-related limitation. Under the PWFA and the ADA, employers need only accommodate “qualified employees.” However, under the ADA, employees are only qualified if they can perform all essential functions of their jobs, with or without accommodation. Under the PWFA, an employee who is unable to perform the essential functions of their job can still be “qualified” if the inability to perform one or more essential functions is “for a temporary period,” the employee could perform the essential functions “in the near future,” and the inability to perform the essential functions can be reasonably accommodated. In such circumstances, the employer may be required to accommodate an employee who is temporarily unable to perform the essential functions of the job by permitting the employee to replace the essential functions they cannot perform with other work, assigning the employee to light duty, or temporarily assigning the employee to a different vacant role, as long as doing so would not cause undue hardship.

The final rule confirms that the term “temporary” can include a time period that extends beyond the near future. The rule also emphasizes that the determination of whether an essential function can be performed in the near future must be determined on a case-by-case basis. However, the regulations presume that 40 weeks, the average length of a pregnancy, is within the “near future.” Therefore, if an employee’s limitation is the result of pregnancy, “it is presumed that the employee could perform the essential function(s) in the near future.” When calculating whether an employee is able to perform a function “in the near future,” employers are not permitted to factor in time that the employee is on leave.

Undue Hardship

The PWFA provides that an employer need not make a reasonable accommodation to a qualified employee if doing so constitutes an “undue hardship.” Here, again, the PWFA adopts the ADA’s definition of undue hardship: “significant difficulty or expense incurred by the covered entity.” Recognizing that undue hardship is an individualized assessment, the final rule sets forth various considerations:

• The nature and net cost of the accommodation
• The financial resources of the facility, the number of people employed at the facility, and the effect on expenses and resources
• The financial resources of the covered entity, the overall size of the business, and the number, type, and location of its facilities
• The type of operations of the covered entity
• The impact of the accommodation on the operation of the facility, including on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

When an employer is considering whether temporarily suspending an employee’s essential functions will cause undue hardship, the employer should consider how long the employee will be unable to perform the essential function; whether there is other work for the employee to accomplish during that time period; the nature of the essential function, including its frequency; whether the employer has ever temporarily suspended the same essential function for other employees; whether there are other employees, temporary employees, or third parties who can perform or be hired to perform the essential functions; and whether the essential functions can be postponed or remain unperformed for any length of time.

The regulations also note that employers may consider the impact of accommodations it is already providing to other employees when considering whether a new request for the same or a similar accommodation imposes an undue hardship. For example, where an employer is already permitting other employees to arrive to work late as an accommodation, it could pose an undue hardship to accommodate another employee with a delayed arrival on those same days.

Predictable Assessments

The final rule suggests there are at least four types of accommodation requests that will, “in virtually all cases,” not impose an undue hardship. These accommodations, which should result in “predictable assessments,” are:

• 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 interpretive guidance makes clear, however, that an employer may still demonstrate in certain circumstances that providing these accommodations to particular employees would cause the employer undue hardship.

Limitations on Requesting Supporting Documentation

The EEOC’s stance on supporting documentation for requests under the PWFA differs significantly from its stance under the ADA. The final rule states that employers may request supporting medical documentation from an individual requesting an accommodation only when it is “reasonable under the circumstances.” Even in those instances, an employer may only request “reasonable documentation,” which the final rule defines as “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; and (3) describe the change or adjustment at work needed due to the limitation.” Employers must permit employees to submit documentation from any health care provider and may not insist on documentation from a provider treating the employee’s condition.

The rule also lists certain circumstances in which it would not be reasonable to request documentation:

• When the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions is “obvious”
• When the employer already has sufficient information that the employee has such a condition and needs an accommodation due to that condition
• When the employee requests one of the accommodations listed in the section on predictable assessments
• When the accommodation is related to lactation—specifically, pumping at work or nursing during working hours when the child is in close proximity (note that an employee can, however, seek documentation when the request is to work from home because of lactation-related issues)
• When the requested accommodation is available to other employees without supporting documents

When the pregnancy is obvious, or when the request for a change at work involves one of the four “predictable assessments,” the regulation says that “self-confirmation” by the employee is sufficient.

Leave as an Accommodation

The regulations state that it is unlawful to require an employee to take leave, including paid leave, as an accommodation if another onsite accommodation is available, unless the employee requests or selects leave as their preferred accommodation. It is therefore critical that employers document when an employee has specifically requested or selected leave as an accommodation in lieu of other alternatives.

The regulations also state that a qualified employee with a known limitation who is granted leave as a reasonable accommodation under the PWFA is entitled to return to their same position unless the employer demonstrates that holding open the position would impose an undue hardship.

Unnecessary Delay

Employers should also be mindful that, according to the EEOC, unnecessary delay in providing an accommodation may constitute a violation of the PWFA, even if the employer ultimately provides a reasonable accommodation. The provision of an interim accommodation will decrease the likelihood that an unnecessary delay will be found, so employers must therefore offer interim accommodations to employees, wherever possible, while their accommodation requests are pending. Notably, the regulations state that leave does not count as an interim reasonable accommodation or a factor that will excuse delay, unless the employee specifically requests it, so employers should consider other interim accommodations before offering an employee time off while an accommodation request is pending.

Implications for Employers

While the PWFA is modeled on the ADA, the PWFA regulations depart from the ADA regulations in a number of significant ways. Accordingly, employers should use the two months leading up to the regulation’s effective date to ensure their accommodation practices comply with the PWFA regulations. Employers may prepare by:

• Reviewing the regulation, the interpretive guidance (including the many examples), and any further technical assistance documents promulgated by the EEOC
• In consultation with counsel, developing policies, protocols, and forms to handle requests for pregnancy-related accommodations
• Training managers, HR, and anyone else who might receive a request for a pregnancy-related accommodation on the basic requirements of the law and how requests for accommodations should be handled