EEOC Issues Final Regulations On The Pregnant Workers Fairness Act
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The Equal Employment Opportunity Commission (EEOC) this week adopted final regulations aimed at bolstering protections for workers across the United States that need accommodations due to pregnancy, childbirth, or related medical conditions. The new regulations provide clarity to the Pregnant Workers Fairness Act (PWFA), that took effect in June 2023, and requires employers with at least 15 employees to consider employee and applicant accommodation requests related to pregnancy, childbirth, or related medical conditions in much the same way as they consider requests for accommodation related to disabilities under the Americans with Disabilities Act (ADA). The new regulations will go into effect on June 18, 2024.
Perhaps the most important aspect of the new regulations is the broad scope of the definition assigned to the phrase, “pregnancy, childbirth or related medical conditions.” A non-exhaustive list of possible circumstances that fall within the broad definition includes:
The finalized rule is expected to be controversial given that it expressly requires employers to consider abortion accommodations, such as time off as an accommodation for an abortion. It should be noted that the PWFA does not exclude religious organizations from compliance.
The regulations contain a number of other definitions which might also be called “broad.” For instance, only “qualified” applicants and employees will be covered under the PWFA – but the final rule provides a more sweeping definition than the ADA, since it includes terms like “temporary” and “in the near future”. Someone is qualified if they can perform the essential functions of the position, with or without reasonable accommodation.
The inability to perform the essential functions of the job under the PWFA includes a temporary inability if the essential functions can be performed “in the near future.” “Temporary” means a limited time, not permanent, and may extend beyond “in the near future.” “In the near future” generally – but not automatically – means about 40 weeks.
If an employer has reasonable concerns about whether a physical or mental condition or limitation is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” the employer may request information from the employee regarding the connection. The employer is limited to obtaining “reasonable documentation” which means: (1) is the minimum sufficient to confirm the physical or mental condition underlying the employee’s limitation; (2) confirms that it is related to, affected by, or arises out of pregnancy, childbirth or related medical conditions; and (3) states that the change or adjustment to the job is needed due to the limitation. In the interpretive guidance accompanying the final rule, the EEOC notes that employers may ask the expected duration of the requested modification.
Qualified employees and applicants are covered by the law if they have “known limitations” that relate to pregnancy, childbirth, or related medical conditions. The term “known” means that the worker or a representative of the worker has communicated to the employer about the limitation. There are no magic words and no required format when it comes to the communication, which can be oral or written.
“Limitation” means any physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions – including impediments or problems that are modest, minor, or episodic. It could also include actions that need to be taken to maintain the worker’s health or the health of their pregnancy, or even if the worker is simply seeking health care for their pregnancy, childbirth, or related medical condition.
In other words, workers with healthy and normal pregnancies could seek and receive accommodations under the PWFA. Unlike the ADA, there’s no threshold for the severity of the physical or mental conditions for accommodation requests.
When requesting documentation, the EEOC expects employers to follow best “interactive process” practices. This is a method borrowed from the ADA, generally calling for “a discussion or two-way communication between an employer and an employee or applicant to identify a reasonable accommodation.” The rule also requires employers to be reasonable in their requests for documentation and not seek more information than is required in order to make a proper determination. The final rule includes a blanket prohibition on employers’ seeking supporting documentation in five instances: (1) when the limitation and need for a reasonable accommodation is obvious; (2) when the employer already has sufficient information to support a known limitation related to pregnancy; (3) when the request is for one of the four “predictable assessment” accommodations; (4) when the request is for a lactation accommodation; and (5) when employees without known limitations under the PWFA receive the requested modification under the employer’s policy or practice without submitting supporting documentation. In such circumstances, an employee’s self-confirmation is the only thing an employer may seek.
The regulations clarify the responsibilities of employers under the PWFA, outlining specific actions they must take to accommodate pregnant workers. Accommodations are simply modifications or adjustments that would enable an applicant or employee to perform the essential functions of the job. They could apply to the job application process or the job itself. The rules provide a long list of potential accommodations employers will need to consider, including:
This is not an exhaustive list. The EEOC and courts may consider other accommodations to be “reasonable,” and, if necessary, employers will have to engage in a good-faith interactive dialogue with the employee to determine appropriate accommodations.
Under the regulations, employers can only deny accommodation requests if they would impose an “undue hardship” on business operations. In general, an accommodation would create an undue hardship if it would cause significant difficulty or expense for operations. Under the final rule, the following factors are identified for consideration when determining whether a particular accommodation will cause an undue hardship:
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