Pregnant Workers Fairness Act: Final Regulation

by Ann Kuzee

The Act and Regulation 

On April 15, 2024, the EEOC issued the final rule and interpretive guidance on the Pregnant Workers Fairness Act (PWFA), and it became effective June 18, 2024. The Act had taken effect on June 27, 2023, and its purpose as described in the final rule “requires a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity.” Prior to April 19, 2024, covered entities were operating with the proposed rule published on August 11, 2023. Employers are covered by the PWFA if they have 15 or more employees, regardless of the industry. Now that the final rules and interpretive guidance has been published, what noteworthy parts stayed the same or changed. 

Noteworthy Parts to the PWFA Final Rule 

1. An employee must have a “Known Limitation” for the PWFA to apply, which is a “physical or mental condition related to affect 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 ADA. The final rule is the same as the proposed rule. 
2. The definitions of “Pregnancy” and “Childbirth” remain unchanged from the proposed regulation and include, but are not limited to, current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth. 
3. The EEOC also has added in the final rule that there may be situations “where the physical and mental condition exacerbates an existing condition that is a disability under the ADA, and in those situations, an employee may be entitled to an accommodation under either the ADA or the PWFA.”
4. Under the final rule, the definition of “Related medical conditions,” “are medical conditions relating to the pregnancy or childbirth of the specific employee in question,” and “a determination that a medical condition is related to pregnancy or childbirth is fact -specific.” The final rule also clarifies that “a connection between a medical condition and pregnancy or childbirth will often be evident when a new medical condition occurs or an existing medical condition is exacerbated or poses a new risk during a current pregnancy, childbirth, or postpartum period.” A non-exhaustive list of related conditions that “are or may be” related medical conditions remains intact in the final rules, including, but not limited to, miscarriage, stillbirth, or abortion, infertility, menstruation, and lactation. 
5. The EEOC has added to the Interpretive Guidance that “related to, affected by, or arising out of” are inclusive terms and that a pregnancy, childbirth, or related medical condition does not need to be the sole, the original, or a substantial cause of the physical or mental condition at issue for the physical or mental condition to be “related to, affected by, or arising out of” pregnancy, childbirth, or related medical conditions. The EEOC also has added information explaining that there may be situations where a physical or mental condition may no longer be related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, and that in those situations, an employee may seek an accommodation under the ADA. 
6. When communicating the need for an accommodation, the final rule kept in place the two-part communication process. 
   • First, the individual “must identify the limitation that is the physical or mental condition and that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” 
   • Second, the individual “must indicate that they need an adjustment or change at work.”
7. Under the final rule, like the proposed rule, an individual is considered “qualified” to perform their job if they can perform the essential functions of their employment position with or without reasonable accommodation. An individual is also considered qualified to perform their job even if an essential function of their job is temporarily removed provided “the inability to perform the essential functions(s) is “temporary,” the employee could perform the essential function(s) “in the near future,” and “the inability to perform the essential function(s) can be reasonably accommodated.” 
8. The final rule keeps the definition of “in the near future” for a pregnant employee to mean generally forty weeks of the temporary suspension of an essential function, but “the final rule’s definition in this section does not mean that the essential function(s) of a pregnant employee must always be suspended for 40 weeks, or that if a pregnant employee seeks the temporary suspension of an essential function(s) for 40 weeks it must be automatically granted.” In general, the individual, may have the essential function(s) suspended up to 40 weeks (full length of a pregnancy), but it depends on the specific situation.
   In the final rule, unlike the proposed, “whether the employee could perform the essential function(s) “in the near future” in situations other than when the employee is pregnant is determined on a case-by-case basis.” The 40 weeks specified in the proposed rule has been removed.
9. The final rule maintains that “Interim Reasonable Accommodations” can be used when there is a delay in providing the reasonable accommodation. “For example, an interim reasonable accommodation may be needed when there is a sudden onset of a known limitation, including one that makes it unsafe, risky, or dangerous to perform the normal tasks of the job, when the interactive process is ongoing, when the parties are waiting for a piece of equipment, or when the employee is waiting for the employer’s decision on the accommodation request.” 
10. The final rule maintains the four job modifications, referred to as “Predictable Assessments,” that are virtually always reasonable accommodations that will not impose an undue hardship on an employer.  These “Predictable Assessments” requiring accommodation are:
    1. allowing an employee to carry or keep water and drink, as needed, in the employee’s work area;
    2. allowing an employee additional restroom breaks, as needed;
    3. allowing an employee whose work requires standing to sit and whose work requires standing to sit, as needed, and
    4. allowing an employee breaks, as needed, to eat and drink.
11. Like the proposed rule, it is not a violation of the final rule for failing to engage in the interactive process, but “a covered entity’s failure to initiate or participate in the interactive process with the employee or applicant after receiving a request for reasonable accommodation could result in employer liability if the employee or applicant does not receive a reasonable accommodation even though one is available that would not have posed an undue hardship.” To avoid this potential liability, employers should engage in the interactive process.
12. The final rule confirms that a covered entity may seek supporting documentation, but they are “permitted to do so only when reasonable under the circumstances to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an adjustment or change at work due to the limitation.”  A covered entity cannot defend the failure to provide an accommodation based on the lack of supporting documentation if the covered entity did not seek supporting documentation; seeking supporting documentation was not reasonable under the circumstances; the covered entity sought documentation beyond that which is reasonable; or the covered entity did not provide the employee sufficient time to obtain and provide the supporting documentation sought.
13. The final rule also refers to five circumstances in which an employee can self-confirm their physical or mental condition, known as “self confirmation,” and their employer may not request supporting documentation: 1) when the limitation and need for reasonable accommodation is obvious, 2) the employer already has sufficient information, 3) it is one of the predictable assessment accommodations, 4) involves lactation, and 5) when other employees may receive the requested modification without supporting documentation.  

In managing PWFA, covered entities also should be aware that failure to provide a reasonable accommodation, requiring an employee to accept an accommodation other than one arrived at through the interactive process, and requiring an employe to take leave when other accommodations are available are prohibited practices. 

Covered entities should, at a minimum, update their pregnancy accommodation policies; educate supervisors, human resource professionals, and other staff as appropriate; and comply with the PWFA final regulation. 

Additional Resources:

1. U.S. Equal Employment Opportunity Commission, “Implementation of the Pregnant Workers Fairness Act” 
2. U.S. Equal Employment Opportunity Commission, “Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA)
3. U.S. Equal Employment Opportunity Commission, “Regulations To Implement the Pregnant Workers Fairness Act”
4. Congress.gov, U.S. Congress. H.R. 2617   (See pages 1626 – 1631) 
5. U.S. Equal Employment Opportunity Commission, “What You Should Know About the Pregnant Workers Fairness Act” 
6. U.S. Equal Employment Opportunity Commission, “Pregnancy Discrimination Act of 1978”
7. U.S. Equal Employment Opportunity Commission, “Titles I and V of the Americans with Disabilities Act of 1990 (ADA)” 
8. U.S. Equal Employment Opportunity Commission, “The Americans with Disabilities Act Amendments Act of 2008” 

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