EEOC Issues Final Rule Regarding Accommodations for Pregnant Workers

On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) issued a Final Rule and Interpretive Guidance to implement the Pregnant Workers Fairness ACT (PWFA). The PWFA is a workplace anti-discrimination law that requires covered employers (those having 15 or more employees) to provide reasonable accommodations to qualified employees or applicants if they have known limitations related to pregnancy, childbirth, or related medical conditions — unless the accommodation would impose an undue hardship on the employer’s operations.

The PWFA defines “known limitation” as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the covered entity, whether or not such condition meets the definition of disability” under the Americans with Disabilities Act (ADA). Interestingly, the Rule defines “pregnancy” and “childbirth” to include “current pregnancy; past pregnancy; [and] potential or intended pregnancy (which can include infertility, fertility treatments, and the use of contraception).” The Rule also provides a long list of “related medical conditions,” that includes, “termination of pregnancy, including via miscarriage, stillbirth, or abortion,” in addition to conditions that are commonly associated with maintaining a pregnancy and undergoing childbirth, such as gestational diabetes, preeclampsia, sciatica, migraines, dehydration, nausea or vomiting, and anxiety and depression, among others.

Examples of reasonable accommodations in the Rule include, but are not limited to, job restructuring; part-time or modified work schedules; reassignment to a vacant position; breaks for use of the restroom, drinking, eating, and/or resting; allowing sitting/standing; permitting the use of paid leave or providing unpaid leave; light duty; remote work; and even temporarily suspending one or more essential functions of the position.

Under the Rule, employers cannot require employees to request an accommodation in writing or in any specific format. An employee’s oral communication to the employer that she needs an adjustment or change at work due to a known limitation is sufficient to trigger the employer’s responsibility to engage in the interactive process with the employee to determine an appropriate reasonable accommodation.  

Notably, an employee or applicant is still considered qualified, even if she is temporarily unable to perform the essential functions of her job, as long as she can perform the essential functions in “the near future.” Under the Rule, a pregnant employee or applicant could still be considered qualified, even if she was unable to perform her essential job functions for a period of 40 weeks/the duration of her pregnancy.

The Rule makes clear that employers are only permitted to request supporting documentation from the requesting employee if it is reasonable under the circumstances and needed for the employer to determine whether the employee or applicant has a condition related, affected by, or arising out of pregnancy, childbirth, or related medical conditions and needs an accommodation due to that limitation. The Rule provides five examples of when it is not reasonable for an employer to seek supporting documentation:

1. When the limitation and the change needed are obvious and the employee confirms it is needed;
2. When the employer already has sufficient information to determine whether the employee has a limitation and needs an adjustment or change at work because of it;
3. When the employee is pregnant and requests to carry or keep water nearby and drink as needed, take additional restroom breaks as needed, sit or stand as needed, or take breaks to eat or drink as needed;
4. When the request for reasonable accommodation is related to a time and/or place to pump at work and is covered by the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”); and
5. When the employer provides the requested accommodation to other employees who aren’t covered by the PWFA without requiring supporting documentation from them.

Under the PWFA, employers do not need to provide a reasonable accommodation if it would impose an undue hardship on an employer. Undue hardship exists if the accommodation causes “significant difficulty or expense,” when considered in light of several factors, including but not limited to, the nature and cost of the accommodation; the overall financial resources of the employer; and the impact of the accommodation on the operation of the facility, including the impact on the ability of the other employees to perform their duties and the impact on the facility’s ability to conduct business.

The Rule also prohibits employers from discriminating or retaliating against employees covered by the law. Prohibited conduct includes, for example, taking adverse action against an employee for requesting a reasonable accommodation, engaging in unnecessary delay when providing an accommodation, failing to provide an accommodation due to lack of supporting documentation if it was not reasonable to seek supporting documentation under the circumstances, or denying opportunities to qualified employees. Employers also may not require that a pregnant employee or applicant take leave if another effective reasonable accommodation exists.

The Rule is scheduled to take effect on June 18, 2024; however, on April 25, 2024, a group of 17 Republican state attorneys general sued the EEOC seeking to enjoin the rule and particularly what they refer to as the Rule’s “abortion-accommodation mandate.” That case is States of Tennessee et al. v. Equal Employment Opportunity Commission, case number 2:24-cv-84, in the U.S. District Court for the Eastern District of Arkansas.

Calfee’s Labor and Employment attorneys are tracking these developments and are available to answer questions and assist with compliance related to the PWFA.