EEOC Issues Final Rule and Interpretive Guidance on Pregnant Workers Fairness Act

Employers should be aware of the Equal Employment Opportunity Commission’s (EEOC) broad reading of the Pregnant Workers Fairness Act (PWFA), which has been in effect since June 27, 2023. The PFWA increases safeguards for qualified job applicants and employees by requiring employers with fifteen or more employees to provide reasonable accommodations relating to pregnancy, childbirth, or related medical conditions. On Monday, April 15, 2024, The EEOC released its Final Rule and interpretive guidance on how to implement the PWFA and this Final Rule takes effect on June 18, 2024. It is important to note that this Final Rule differs in part from the EEOC’s proposed rule that was issued in August of 2023 that we had covered in a previous blog post.

In issuing its guidance, the EEOC’s interpretation is expansive. For example, the EEOC emphasized that the physical or mental condition that leads to an accommodation request under the PWFA does not need to meet the threshold requirements of the Americans with Disabilities Act (ADA) and the condition can be modest, minor, or episodic in nature.

Furthermore, the EEOC took a wide stance on what “pregnancy, childbirth, or related medical conditions” means within the context of the PWFA. The EEOC explained that this language includes: “current pregnancy, past pregnancy, potential pregnancy, lactation, breastfeeding, pumping, use of contraception, menstruation, infertility, fertility treatments, endometriosis, miscarriage, stillbirth, having an abortion, choosing not to have an abortion, and pre-existing conditions that are exacerbated by pregnancy or childbirth.”

In stark contrast to the ADA, the PWFA allows for the temporary elimination of the essential functions of a job as a reasonable accommodation.  In this regard, the PWFA defines a qualified individual as an employee or applicant who cannot perform an essential function of the job for a “temporary” period, if the person is or is expected to be able to perform the essential function “in the near future.”  The Final Rule defines “temporary’” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” The Final Rule further defines “in the near future” as “generally forty weeks from the start of the temporary suspension of an essential function.”  In this way, an individual is able to request a reasonable accommodation under the PWFA in the form of a temporary suspension of an essential job function if the individual is or is expected to be able to perform the essential job function within 40 weeks. The individual will only be deemed unqualified under the PWFA if there is no reasonable accommodation available or the reasonable accommodation would cause an undue hardship to the employer.

The EEOC confirms that the PWFA incorporates familiar concepts from the ADA such as reasonable accommodation and undue hardship.  These concepts, however, are to be applied liberally in order to fulfill the purpose of the PWFA. For example, based on the transitory nature of pregnancy-related conditions, the Final Rule encourages employers to grant an employee’s accommodation request on an interim basis, even if the employer believes additional information may be required. Given this guidance, the EEOC also provided a non-exhaustive list of accommodations that may include: frequent breaks, sitting, schedule changes, part-time work, unpaid leave, remote work, reserved parking, light duty, job restructuring, temporarily suspending essential functions, modifying equipment, or modifying policies. The EEOC also provided four de facto reasonable accommodation requests that include: (1) allowing an employee to carry or keep water and drink, as needed, in or nearby the employee’s work area; (2) allowing an employee to take additional restroom breaks, as needed; (3) allowing an employee whose work requires standing to sit, and vice versa, as needed; and (4) allowing an employee to take breaks, as needed, to eat and drink.

For questions regarding the EEOC’s Final Rule or any other labor and employment matter, please contact any of the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that affect your workplace, be sure to subscribe to this blog and follow us on social media!