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EEOC’s Pregnant Workers Fairness Act Regulations Set to Take Effect June 18, 2024, Providing Clarity and Controversy

In June 2023, the Pregnant Workers Fairness Act (the “PWFA”) took effect. This federal law requires covered employers to provide a reasonable accommodation to the “known limitations” of qualified employees or applicants “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” unless doing so would impose an undue hardship. 

Now, one year later, the Equal Employment Opportunity Commission (“EEOC”)’s final rule (the “Rule”) implementing the PWFA is set to take effect on June 18, 2024. The Rule is intended to clarify what is actually required of covered employers under the PWFA. This Alert explains several of the key terms employers will need to understand when applying the PWFA.

“Known Limitations”

The PWFA looks in large part to the Americans with Disabilities Act of 1991 (“ADA”) for its structure and approach. As consequential as the ADA’s reasonable accommodations requirements have been for the American workplace, the ADA only requires employers to accommodate impairments that substantially limit one or more major life activity. Consequently, pregnancy itself is not a condition that employers are typically required to accommodate under the ADA, nor are a number of pregnancy-related conditions, such as non-severe morning sickness or fatigue. Under the Rule, however, a “limitation” is defined as any physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. In this way, the PWFA appears broader than the ADA. 

The Rule further clarifies that the terms “pregnancy” and “childbirth” are intended to encompass not only a current or recent pregnancy or childbirth, but also a past pregnancy, potential or intended pregnancy (thereby potentially bringing fertility treatments and the use of contraception under the umbrella of the PWFA), and labor. The Rule provides a non-exhaustive list of conditions that may be “related to” pregnancy or childbirth such that they would be a “limitation” covered by the Rule, including the termination of pregnancy (whether through miscarriage or abortion), lactation and related conditions, menstruation, antenatal or postpartum depression, anxiety, or psychosis, gestational diabetes, preeclampsia, and nausea or vomiting. 

The inclusion of abortion as a condition covered by the PWFA has been challenged in United States District Court for the Eastern District of Arkansas by a group of 17 states. On June 3, 2024, the court heard argument on the states’ motion to preliminarily enjoin the Rule’s impending effective date. The court did not specify the date by which it would rule. A separate lawsuit has halted enforcement against public employers within the state of Texas and is currently on appeal. 

A limitation is “known” if the individual (or a representative of the individual, such as the employee’s family member, friend, or healthcare provider) has communicated the limitation to the employer. Like a request for accommodation under the ADA, there are no “magic words” that must be used before an employer’s duties under the PWFA are triggered, nor does a particular form need to be used. The Rule also provides that an employer may request documentation of the individual’s limitation only when it is “reasonable under the circumstances.” 

“Covered Employers”

Like the ADA, an employer is subject to the requirements of the PWFA if it has 15 or more employees. Perhaps most notably, this means that employers with between 15 and 49 employees who are, therefore, not subject to the Family and Medical Leave Act (“FMLA”), may now, for the first time, be required to provide a period of unpaid leave to an employee who is recovering from childbirth.

“Qualified Employees or Applicants”

To be a “qualified” employee or applicant, the individual must be able to perform the essential functions of the job, with or without a reasonable accommodation. This is the same definition of the term “qualified” under the ADA. However, an individual will remain “qualified” even if they cannot perform essential job functions (i) if the individual’s inability to perform the essential functions is only “temporary,” (ii) the individual will be able to perform the essential functions “in the near future,” and (iii) the inability to perform the essential functions can be reasonably accommodated.

An individual’s inability to perform the essential functions is “temporary” if it will last only “for a limited time” and is “not permanent.” Whether an individual can perform the essential functions “in the near future” is determined on a “case-by-case” basis; however, if the employee is pregnant, “in the near future” means “within generally 40 weeks.”

The Rule applies this carveout to the following example: A police officer is unable, because of her pregnancy, to perform patrol duties during her second and third trimesters but patrol duties are an essential function of the job. If there is no reasonable accommodation that would allow the employee to perform the patrol duties, the employer still must accommodate the officer (e.g., by placing her on light duty until her pregnancy ends) unless doing so would impose an undue hardship (more on that below).

Additionally, employers should note that, unlike the FMLA, which applies only if the employee has worked for the employer for at least twelve months and for at least 1,250 hours in the past year, the PWFA does not include any tenure or hours requirement. Thus, an employee may be “qualified” and therefore entitled to a period of unpaid leave or other accommodation following childbirth or as a result of other pregnancy-related limitations even if the employee has not worked for the employer for at least twelve months or has already exhausted the twelve weeks of leave available under the FMLA. Likewise, the benefits of the PWFA cannot be limited to full-time employees alone.

“Reasonable Accommodation”

The definition of a “reasonable accommodation” under the Rule tracks the meaning of the term from the ADA – i.e., a modification or adjustment that allows an individual to participate in the application process, perform the essential functions of a job, or enjoy benefits and privileges of employment. However, there is one important addition: the Rule makes it explicit that the temporary suspension of essential functions may be a reasonable accommodation under the PWFA.

Accordingly, depending on the circumstances of the employee’s pregnancy, reasonable accommodations may include providing an employee additional breaks, a reserved parking space, or a reprieve from heavy lifting; acquiring personal protective equipment, a larger-sized uniform, or a fan for the employee; allowing the employee to work from home, arrive at work later, leave work earlier, take unpaid leave, go part-time, consume food or beverages in an area where food or drink is not usually permitted, or move to a workstation that is closer to the restroom or farther away from environmental hazards.

“Undue Hardship”

As with the ADA, an employer need not provide an accommodation under the PWFA if doing so would constitute an undue hardship. The Rule explains that an undue hardship would result if providing the requested accommodation would cause the employer “significant difficulty or expense” in light of a number of factors, including the financial realities of the particular employer as well as the accommodation’s potential for disrupting or altering the nature or operation of the employer’s business. 

While acknowledging that the undue hardship analysis is a highly individualized assessment, the Rule states that, in “virtually all cases,” there are four “common sense, low-cost accommodations” that will not impose an undue hardship: (1) allowing an employee to carry and drink water, as needed, (2) allowing an employee to take additional restroom breaks, as needed, (3) allowing an employee to sit or stand while working, as needed, and (4) allowing an employee to take breaks to eat and drink, as needed.

Given the PWFA’s similarities to the ADA, many employers will have an intuitive sense as to how to approach accommodation requests under the PWFA. Indeed, employers would be well-advised to take a case-by-case, collaborative approach with employees after learning about their pregnancy-related needs. Rigid approaches to what accommodations are to be provided, or limiting accommodations to a fixed menu of options, is not an approach endorsed by the Rule and could expose employers to liability. If you have any questions regarding the PWFA or the Rule and the impact it may have on your employment practices, please contact one of the authors above.