The Pregnant Workers Fairness Act (PWFA) was enacted last year with the purpose of protecting pregnant workers from discrimination and providing them with a right to reasonable accommodations in the workplace. On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) published its Final Rule setting forth expansive regulations implementing the law. The Final Rule becomes effective June 18, 2024.

The PWFA requires employers with 15 or more employees to make reasonable accommodations to the known limitations of employees and applicants related to pregnancy, childbirth, or related medical conditions, unless doing so would result in undue hardship. Employers are also prohibited from denying employment opportunities to employees based on their need for reasonable accommodations under the PWFA, forcing employees to take leave in lieu of providing reasonable accommodations, coercing employees to accept reasonable accommodations that were not arrived at through an interactive process, or retaliating against employees for asserting their rights under the PWFA by seeking accommodations for conditions related to pregnancy, childbirth, or related medical conditions.

In the Final Rule, the EEOC elaborates on what conditions fall within the scope of “known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.” The Final Rule explains that a “limitation” need not rise to the level of a “disability” under the Americans with Disabilities Act (“ADA”), and instead can be “modest, minor, and/or episodic.”

Aside from carrying and birthing a child, the Final Rule provides that “pregnancy" and "childbirth” also applies to potential or intended pregnancies, including pre-pregnancy medical needs related to infertility, fertility treatment, and the use of contraception. The Final Rule clarifies that “related medical condition” likewise has a broad definition and includes numerous physical and mental conditions of pregnancy such as abortion, miscarriage, stillbirth, gestational diabetes, ectopic pregnancy, preeclampsia, chronic migraines, high blood pressure, antenatal anxiety and depression, postpartum depression, lactation, and preexisting conditions exacerbated by pregnancy.

The EEOC’s inclusion of abortion in “related medical condition” is both notable and controversial. The EEOC received significant resistance during the notice-and-comment period regarding its inclusion of abortion in the definition. Employers should be aware that the Final Rule requires them to provide reasonable accommodations to qualified employees seeking abortion procedures absent an undue hardship, including potentially time off for employees who must travel to other states to receive abortion care.

The Final Rule also elaborated on the PWFA’s definition of “qualified,” which is a significant departure from the familiar ADA framework. The PWFA provides that an employee is “qualified” even if they cannot perform one or more essential functions of the job if the inability to perform an essential function is for a temporary period, the essential function could be performed in the near future, and the inability to perform the essential function can be reasonably accommodated.

The PWFA did not define “temporary” or “in the near future,” but the Final Rule explains that “temporary” means “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” In turn, “in the near future” is presumed to be 40 weeks (the length of an average pregnancy) if the employee seeking accommodation is currently pregnant; however, the EEOC did not specify a specific length of time for employees who are not currently pregnant (such as employees who are recently post-partum). Moreover, these definitions govern only whether the employee is “qualified”—employers can still separately evaluate whether removing an essential function for the requested length of time is “reasonable” or causes an “undue hardship.”

The Final Rule also elaborated on what accommodations may be deemed “reasonable” under the PWFA and provided a non-exhaustive list of examples of possible reasonable accommodations:

• Job restructuring
• Part time or modified work schedules
• Reassignment to a vacant position
• More frequent breaks
• Acquisition or modification of equipment, uniforms, or devices
• Providing seating for jobs that require standing, or allowing standing for jobs that require sitting
• Adjustment or modifications of examinations or policies
• Paid or unpaid leave
• Light or modified duty
• Telework/remote work
• Adjustments to allow the employee to work without increased pain or risk to the employee’s health or the health of the pregnancy
• Temporarily suspending one or more essential functions
• Providing a reserved parking space

Further, the Final Rule provides that “in virtually all cases” the following accommodations will be reasonable and will not impose an undue hardship when requested by a pregnant employee:

• Allowing an employee to carry or keep water near and drink, as needed
• Allowing an employee to take additional restroom breaks, as needed
• Allowing an employee whose work requires standing to sit, and whose work requires sitting to stand, as needed
• Allowing an employee to take breaks to eat and drink, as needed

The Final Rule goes into effect on June 18, 2024, and also covers other topics not addressed in this alert. Stites & Harbison employment attorneys can advise you regarding your obligations under the Pregnant Workers Fairness Act and the Final Rule, assist with training managers and human resource professionals, and help you defend against PWFA actions.