EEOC Publishes Final Rules Governing the Pregnant Workers Fairness Act

Kathryn Bennett, Law Clerk

On April 15, 2024, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated revised rules (“Final Rules”) regarding interpretation and enforcement of the Pregnant Workers Fairness Act (“PWFA”). The Final Rules reflect the EEOC’s broad and expansive view of the physical and mental conditions which may require employer accommodations, how long those accommodations may be required to be provided, and differences between conditions arising out of pregnancy or childbirth versus medical conditions “related” to the same.[1] The Final Rules are the result of the EEOC’s response to over one hundred thousand public comments to its prior August 11, 2023 Notice of Proposed Rulemaking (“NPRM”). While the Final Rules and the initial rules in the NPRM are largely consistent, there are notable key differences between the two.

Important Changes to the Final Rules

The PWFA makes it unlawful to “not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.”[2] A “limitation” is defined as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”[3] The NPRM stated that a condition which is modest or minor, or an episodic impediment or problem, could require an accommodation. The Final Rules retain the expansive reading of the conditions which may require accommodations under the PWFA, which may notably include either abortion or the choice to not have an abortion—a topic which received tens of thousands of public comments. However, the Final Rules specify that a limitation must be suffered by the employee, and the Final Rules do not include a spouse or partner’s physical or mental condition caused by pregnancy, childbirth, or a related medical condition (such as, for example, a spouse’s anxiety due to a partner’s pregnancy).

The public also provided substantial feedback on the topic of when an employee may be considered a “qualified” individual subject to the PWFA’s accommodation requirements. In particular, and unlike the ADA, the PWFA covers individuals who cannot perform one or more of the essential functions of a job with or without a reasonable accommodation, but the inability must be “temporary,” the employee must be able to perform the essential function or functions “in the near future,” and the inability to perform an essential function must be able to be reasonably accommodated. The Final Rules now state that “in the near future” still means within forty weeks for conditions relating to a current pregnancy, but whether an employee may be able to perform essential job functions “in the near future” when the conditions relate to childbirth or other medical conditions will require a case-by-case analysis. The EEOC specified that the case-by-case analysis does not allow for indefinite accommodations, but may need to extend beyond a six-month period.

The Final Rules also narrow the scope of which conditions may require accommodation as a “related medical condition.” In response to public comments regarding the sheer breadth of conditions that this definition could encompass, the Final Rules now state that “related medical conditions are medical conditions relating to the pregnancy or childbirth of the specific employee in question.” The Final Rules explain that the PWFA does not require pregnancy or childbirth to be the sole, original, or substantial cause for the limitation. Further, an employee’s condition should be adequately connected to pregnancy or childbirth upon a showing that the employee is currently pregnant, experiencing childbirth, or has just experienced childbirth.

Last, the EEOC’s regulations provide a non-exhaustive list of examples of conditions requiring accommodation. The list includes pregnancy, past pregnancy, menstruation, fertility treatments, endometriosis, the use of contraception, postpartum depression, antenatal anxiety, lactation and conditions related to lactation, and “termination of pregnancy,” such as miscarriage, stillbirth, or abortion.

Employer Takeaways

Employers may consult the Final Rules for examples of accommodations which may be reasonable upon consideration of the specific condition of the affected employee. Suggestions include additional breaks to drink water, eat, or use the restroom; a stool to sit on during work hours; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage. Note that an employee must still communicate the need for a reasonable accommodation before an employer is potentially obligated to provide one.

Though the PWFA has been in effect since June 2023, employers should revisit their policies and practices ahead of the June 19, 2024 Final Rules implementation date to ensure compliance. Campbell Litigation, P.C. is available to answer questions and concerns about these EEOC regulations and the PWFA generally.

[2] 42 U.S.C. § 2000gg.

[3] Id.

Campbell Litigation, P.C.April 25, 2024Comment

The Rocky Mountain Employer

EEOC Publishes Final Rules Governing the Pregnant Workers Fairness Act