Quick Hits

  • The EEOC recently unveiled its final rule implementing the Pregnant Workers Fairness Act.
  • The final rule is set to be published in the Federal Register on April 19, 2024, and the rule will take effect sixty days later on June 18, 2024.

The final rule implements the PWFA, which became effective in June 2023, and it requires employers to provide reasonable accommodations to employees for known limitations related to pregnancy, childbirth, or related medical conditions. The final rule gives further guidance to employers on the PWFA, defining “qualified” employees and covered medical conditions and explaining the process for granting reasonable accommodations.

The final rule comes eight months after the agency released its proposed rule in August 2023, following which the EEOC received more than 100,000 comments. The final rule is set to be formally published in the Federal Register on April 19, 2024, and it will go into effect sixty days after publication on June 18, 2024.

Employers may want to take note of key parts of the new rule to ensure their policies and procedures are compliant.

Reliance on ADA Concepts

The final rule, like the proposed rule, leans on the concepts of the Americans with Disabilities Act (ADA) with which employers are likely familiar, including the definitions for key terms such as “essential functions,” “reasonable accommodation,” “undue hardship,” and “interactive process.” However, there are notable differences between the PWFA and the ADA, including the following: the types of “related medical conditions” qualifying under the PWFA but not under the ADA; an alternative definition of “qualified” and a potential suspension of essential functions; and limitations on an employer’s right to request documentation.

Covered Employees

“Qualified” Employees and Temporary Suspension of Essential Job Functions

The final rule includes two definitions for “qualified employee,” as did the proposed rule. First, similar to the ADA, an individual is “qualified” if she can perform the essential functions of her job, with or without reasonable accommodation. Under the final rule, the term “employee” includes job applicants as well.

The alternative definition for “qualified employee” represents a marked departure from the ADA in that an employee may be qualified—despite the inability to perform one or more essential functions—if the inability is “temporary”; the employee “could perform the essential function(s) ‘in the near future,’” and the inability to perform “can be reasonably accommodated.”

“Temporary” and “In the Near Future”

The EEOC noted that while it had received several comments on its proposed definition of “temporary,” it did not change the definition from the proposed rule, which was “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’”

While the proposed rule had stated that “in the near future” meant generally forty weeks, the final rule adopted a case-by-case determination. For “current pregnancy,” the final rule presumes “in the near future” to mean an employee could perform the essential functions within forty  weeks of suspension. Of course, this does not mean that pregnant employees are automatically afforded forty weeks of suspended essential functions; rather, “they are merely considered ‘qualified.’” The EEOC noted that many pregnant workers “will need less than 40 weeks of temporary suspension of an essential function(s).”

For conditions other than pregnancy, the EEOC agreed with comments that “there should not be a presumptively consistent measure of the term ‘in the near future.’” A few guideposts are offered, however, including a reiteration of a familiar concept under the ADA regarding leave, namely, that an employee needing indefinite suspension of essential functions “cannot reasonably be considered to meet the standard of an employee who could perform the essential function(s) ‘in the near future.’” The EEOC also noted that temporary leave or temporary suspension of essential functions might extend beyond six months, depending on the circumstances.

The final rule excludes any period of leave from being counted as part of the determination as to whether a worker can resume essential function(s) “in the near future.” Finally, the EEOC declined to adopt a specific reference to resetting “the clock for determining ‘in the near future’” after childbirth. Rather, the determination with regard to whether an employee can resume an essential function(s) “in the near future” starts at the time of the employment decision.

Pregnancy, Childbirth, or Related Medical Conditions

In the final rule, the EEOC provides a long, non-exhaustive list of circumstances or conditions that qualify as a covered “pregnancy, childbirth or related medical condition,” including some that may not have been obvious at the time of the passage of the PWFA. 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, the last of which was the subject of approximately 54,000 comments in favor of exclusion and approximately 40,000 comments in favor of inclusion. The EEOC explained that including abortion in the definition “pregnancy, childbirth, or related medical conditions” was “consistent” with the EEOC’s and the courts’ “longstanding interpretation of the same phrase in Title VII [of the Civil Rights Act of 1964].”

Reasonable Accommodations

The final rule provides that a “reasonable accommodation” includes “modifications or adjustments” to the “job application process” or “work environment” or “modifications or adjustments” that enable a qualified employee with known limitations under the PWFA “to enjoy equal benefits and privileges of employment,” or the “temporary suspension of essential function(s).”

The final rule points to several potential examples of reasonable accommodations, such as making facilities usable to employees with known limitations under the PWFA; job restructuring; allowing access to a light or modified duty program; telework; modifying work schedules; allowing breaks for the restroom, eating, drinking, or resting; providing seating for jobs that require standing; providing reserved parking; or providing unpaid leave.

Other referenced examples include restructuring jobs by temporarily suspending certain essential job functions, modifying equipment, uniforms, or devices, and modifying examinations or policies. Relative to abortion, the EEOC noted that the most likely type of accommodation that would be sought would be “time off to attend a medical appointment or for recovery.”

“Predictable Assessments”

While the PWFA incorporates the ADA defense of undue hardship, the regulations add to the definition of “undue hardship” the notion of “predictable assessments”—“simple modifications that will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by a qualified employee due to pregnancy.” While the EEOC received comments suggesting an expansion of the list of predictable assessments, the EEOC adopted the four categories identified in the proposed rule for allowing employees to: (1) “carry or keep water near and drink, as needed”; (2) “take additional restroom breaks, as needed”; (3) stand or sit, as needed; (4) “take breaks to eat and drink, as needed.” At the same time, the EEOC observed that “several of the recommended additions [e.g., closer parking spaces, workstations closer to bathrooms, etc.] also are common and simple, and employers should be able to provide these, and, in fact, many accommodations under the PWFA, with little difficulty.”

Additional Lactation Accommodations

The final rule, like the proposed rule, provides that reasonable accommodations related to lactation include breaks and spaces for lactation as required by the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). Like the proposed rule, the final rule goes farther than the PUMP Act’s requirement that employers provide reasonable break time each time an employee needs to express milk and provide space that is (1) not a bathroom, (2) “shielded from view,” and (3) “free from intrusion from coworkers and the public.”

The final rule states that a reasonable accommodation includes, but is not limited to, ensuring the area for lactation is in reasonable proximity to the employee’s workspace, that it is regularly cleaned, that it has electricity, that it has seating and a surface to place a breast pump, and that it is in reasonable proximity to a sink, running water, and a refrigerator for storing milk. The final rule goes farther than the proposed rule by discussing nursing.

The final rule notes that accommodations related to lactation may also include nursing “where the regular location of the employee’s workplace makes nursing during work hours a possibility because the child is in close proximity.”

Requesting an Accommodation

Employees “need only communicate” to a covered employer their need for “an adjustment or change at work due to their limitation (a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions)” and employees do “not have to identify a medical condition.” Employees can communicate the need to a supervisor, manager, human resources personnel, or anyone “‘who directs the employee’s tasks.’” The final rule states that employers may “initiate an informal, interactive process” to “determine the appropriate reasonable accommodation.”

“Limits on Supporting Documentation”

As with the proposed rule, an employer is not required to seek documentation from an employee seeking an accommodation; the employer “may seek supporting documentation … only when it is reasonable under the circumstances for the covered entity to determine whether” to grant the accommodation. Employers may not seek supporting documentation when: (1) the accommodation “due to the limitation [is] obvious and the employee provides self-confirmation”; (2) “the employer already has sufficient information 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”; (3) the employee is pregnant and requests a work adjustment listed as a “predictable assessment”; (4) the “reasonable accommodation is related to a time and/or place to pump at work, other modifications related to pumping at work, or a time to nurse during work hours”; and (5) “the requested accommodation is available to employees without known limitations under the PWFA pursuant to a covered entity’s policies or practices without submitting supporting documentation.”

In situations where employers may seek documentation, employers may only require the minimum information needed to confirm the physical or mental condition that it is related to pregnancy, childbirth, or related medical conditions, and that a modification is necessary. The final rule states that employers may not require a specific form but can require documentation from a health care provider, which includes a doula, lactation consultant, or industrial hygienist.

This limitation on employers to require only the minimum information needed is consistent with the EEOC’s guidance that medical inquiries under the ADA should be limited only to the medical information for which there is a business need to determine that an employee is covered under the ADA and requires an accommodation to assist with the performance of job duties.

Next Steps

Employers may want to review their policies and current accommodation practices in light of their compliance obligations under the PWFA and the PUMP Act. Employers will continue to see PWFA requests and may want to consider training supervisors and human resources personnel on how to handle these requests.

Additionally, employers may want to review state and local pregnancy accommodation requirements, as well as confirm they are using the current EEO poster, which includes applicable PWFA provisions.

For more information on the EEOC’s final rule and interpretive guidance implementing the PWFA—including insight on how the final rule accords with and departs from interactive process and reasonable accommodation practices under the ADA—please join us for our upcoming webinar, “The Pregnant Workers Fairness Act and the EEOC’s Final Regulations,” which will take place on Tuesday, April 23, 2024, from 1:00 p.m. to 2:00 p.m. (EDT). The speakers, Stacy M. Bunck, Tiffany Cox Stacy, and Christine Bestor Townsend, will review the documentation requirements, list of medical conditions related to pregnancy and childbirth, and examples of reasonable accommodations for pregnancy-related conditions. Register here.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Leaves of Absence blog as additional information becomes available.

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Leaves of Absence/Reasonable Accommodation

Managing leaves and reasonably accommodating employees can be complex, frustrating, and expose employers to legal peril. Employers must navigate a bewildering array of state and federal statutes, with seemingly contradictory mandates.

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