EEOC Issues New Rule on the Pregnant Workers Fairness Act

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued a Final Rule on implementing the Pregnant Workers Fairness Act (PWFA). The PWFA was enacted in December 2022 and has been in effect since June 2023. The PWFA requires covered employers to provide reasonable accommodations to qualified employees or applicants with known limitations related to pregnancy, childbirth, or related medical conditions.

Similar to the Americans with Disabilities Act (ADA), the PWFA contains an exception to the requirement to accommodate if the accommodation will cause the employer an “undue hardship.” Unlike the ADA, however, the PWFA does not require that qualifying limitations meet the same standard of disability under the ADA.

The Final Rule, which goes into effect on June 18, 2024, provides clarification on covered employees, covered limitations and medical conditions, and how individuals can request reasonable accommodations. Importantly, the Final Rule includes numerous examples of covered conditions and reasonable accommodations to illustrate how employers may handle requests for accommodations.

The list of “pregnancy, childbirth or related medical conditions” is non-exhaustive – the employee does not need to exhibit one of the listed symptoms or limitations to receive an accommodation. Importantly, the definition of “limitation” also includes when an employee is seeking health care related to the pregnancy, childbirth, or a related medical condition itself.

To be a covered medical condition for the PWFA, the employee's medical condition must relate to pregnancy or childbirth. The scope of “related medical conditions” is very broad; the non-exhaustive list includes menstruation, lactation, and termination of pregnancy, including via miscarriage, stillbirth, or abortion. It should be noted that the inclusion of abortion under this definition is controversial and is being challenged in court. The Final Rule provides an example of an employee who gave birth two weeks ago that is vomiting because of food poisoning as not qualifying under the PWFA because the vomiting is not related to pregnancy or childbirth.

An employee's medical condition, however, need not be caused solely, originally, or substantially by pregnancy or childbirth. Related medical conditions may include conditions that existed before pregnancy or childbirth but were exacerbated by pregnancy or childbirth. The existence of an ADA accommodation for that condition does not preclude an employee from receiving a PWFA accommodation for the condition. The Final Rule provides an example of an employee who received extra breaks to eat or drink due to Type 2 diabetes before pregnancy (an ADA reasonable accommodation) needing additional accommodations during pregnancy to monitor and manage the diabetes more closely to avoid or minimize adverse health consequences to the employee or the pregnancy.

Unlike ADA, the PWFA provides that an employee can meet the definition of “qualified” even if the employee cannot perform one or more essential functions of the position if the employee meets three conditions: (1) the inability to perform an essential function(s) is for a temporary period; (2) the essential function(s) could be performed in the near future; and (3) the inability to perform the essential function(s) can be reasonably accommodated.

The Final Rule does not provide a strict definition for “temporary” or “in the near future”, although the Final Rule states that any definition of “in the near future” as less than the duration of a full-term pregnancy (i.e., 40 weeks) would contravene the purpose of the PWFA to protect pregnant employees in the workplace.

Further, the Final Rule emphasizes that informing the employer of the limitation and requesting a reasonable accommodation should not be complicated or difficult. Employers should allow employees to communicate their limitations and requests for accommodations through various avenues and means—without the requirement for a specific format, specific words, or a specific form. An employee does not need to ask for an accommodation to trigger an employer’s obligations under the PWFA; the employee may provide a statement of the need for an accommodation. While the employee cannot be required to submit such communication of limitation or request for accommodation in writing, it is good practice to confirm the employee’s request in writing or to ask the employee to fill out a form or otherwise confirm the request in writing.

Finally, there are some specific modifications which the EEOC automatically considers reasonable accommodations in virtually all cases. These modifications include: (1) allowing an employee to carry or keep water nearby and drink while working, 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 additional, short breaks to eat and drink, as needed.

Please contact a Woods Rogers Labor & Employment attorney if you have any questions about complying with the PWFA.