PWFA final rule

The EEOC has issued a final rule implementing the Pregnant Workers Fairness Act (PWFA) after receiving over 100,000 public comments on the Notice of Proposed Rulemaking issued last August. The Interpretive Guidance will become part of 29 CFR part 1636. It provides clarity to employers and workers about who is covered, the types of limitations and medical conditions covered, and how individuals can request reasonable accommodations. It also provides a slew of examples.

The PWFA, building upon protections already available under Title VII and the ADA, requires most employers with 15 or more employees to provide “reasonable accommodations,” or changes at work, for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer undue hardship. The EEOC began accepting related charges of discrimination on the day the PWFA became effective (June 27, 2023).

Abortion. Regarding its inclusion of abortion in the definition of “pregnancy, childbirth, or related medical conditions,” the EEOC noted that it received approximately 54,000 comments (most of them form comments from individuals) urging it to exclude abortion from that definition. It received 40,000 comments (also mostly form) supporting its inclusion. Many on both sides of the issue focused on their deeply held beliefs, religious and not, regarding whether abortion was a necessary part of health care. In the final regulation, however, the EEOC continues to include abortion in the definition as proposed and consistent with its longstanding interpretation of the same phrase in Title VII.

The agency provided some responses to the comments, including noting that the PWFA is a workplace anti-discrimination law and, as such, is limited. The type of accommodation “most likely” to be sought under the Act regarding abortion is time off to attend a medical appointment or for recovery, the EEOC pointed out, and, as with the ADA, it does not have to be paid time. Pragmatically speaking, the EEOC pointed out that in spite of the large number of comments it has received, “very few employers have actually faced a situation where an employee is expressly requesting leave for an abortion and the employer declines to grant the leave on religious or moral grounds.”

It also explained its disagreement with the assertion that the PWFA and its implementing regulation only would apply to qualified employees who are currently pregnant or who recently gave birth, thus implicitly excluding abortion. “As a matter of the PWFA’s plain test, therefore,” it concluded, “the Commission determines that the decision to have, or not to have, an abortion is encompassed within the phrase ‘pregnancy, childbirth, or related medical conditions.’” It also rejected the assertion that the Dobbs decision, and its interpretation of the same language within the context of Title VII, suggested a different definition of the phrase “pregnancy, childbirth, or related medical conditions.”

Related to, affected by, arising out of. Some comments asked for additional clarification regarding the language “related to, affected by, or arising out of.” The PWFA uses the language “related to, affected by, or arising out of” to explain the connection between the physical or mental condition and pregnancy, childbirth, or related medical conditions, the EEOC stated, and as such, the statute does not require that pregnancy, childbirth, or related medical conditions be the sole, the original, or a substantial reason for the physical or mental condition.

The Commission noted that it does not have the authority to change this term. Thus, to help respond to these comments, in the Interpretive Guidance in section 1636.3(a)(2) under Related to, Affected by, or Arising Out of, the Commission added 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.

Temporal proximity. Some comments requested that the Commission limit the definition of “pregnancy, childbirth, or related medical conditions” under the PWFA to situations that met their definition of close temporal proximity to a current or recent pregnancy. The EEOC did not make those changes and declined to adopt a bright-line temporal rule that “would improperly exclude many employees, such as employees with postpartum limitations, who may require pregnancy-related accommodations.” It noted, however, that “related medical conditions” must be related to the pregnancy or childbirth of the specific employee in question, and whether a specific condition is related to pregnancy or childbirth is a fact-specific determination that will be guided by existing Title VII precedent and prior relevant EEOC guidance.

List of conditions. Regarding the list of conditions that were included in the regulation as examples of “pregnancy, childbirth, or related medical conditions,” some commenters worried the regulation would “require accommodations for any physical or mental condition that has any real, perceived, or potential connection to—or impact on—an individual’s pregnancy, fertility, or reproductive system.”

In response, the EEOC noted that it made clarifying changes and additions to the language in this section of the regulation and also added more information in the Interpretive Guidance. It noted that, in the Interpretive Guidance in section 1636.3(b), it added information regarding the Commission’s “expectation that it will be readily apparent that certain medical conditions (e.g., lactation, miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, and HELLP (hemolysis, elevated liver enzymes and low platelets syndrome)) have a relation to pregnancy or childbirth; and that, similarly, 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.”

Other additions, clarifications, changes, and features. Other highlights from the final regulation include:

• Addition of numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; 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, among others.
• Inclusion of “union representative” within the definition of “employee’s representative.”
• Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness.
• Explanation of when an accommodation would impose an undue hardship on an employer and its business.
• Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.
• Removal of most instances of the words “applicant” and “former employee,” with the stated understanding that the term “employee” covers “applicant” and “former employee” when relevant. Also, replacement of the word “worker” with the word “employee” throughout.
• Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances.
• Some commenters asked for clarification as to whether the language in the NPRM required employers to provide reasonable accommodations to an employee when an employee’s partner, spouse, or family member—and not the employee themselves—has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. It does not, the EEOC explained, and it has included in the final rule’s definition of “limitation” that the limitation must be of the specific employee in question.

“The Pregnant Workers Fairness Act is a win for workers, families, and our economy. It gives pregnant workers clear access to reasonable accommodations that will allow them to keep doing their jobs safely and effectively, free from discrimination and retaliation,” said EEOC Chair Charlotte A. Burrows. “At the EEOC, we have assisted women who have experienced serious health risks and unimaginable loss simply because they could not access a reasonable accommodation on the job. This final rule provides important information and guidance to help employers meet their responsibilities, and to jobseekers and employees about their rights. It encourages employers and employees to communicate early and often, allowing them to identify and resolve issues in a timely manner.”

The final rule will be published in the Federal Register on April 19. A summary of its key provisions has also been made available by the EEOC. The final rule was approved by majority vote of the Commission on April 3, 2024, and becomes effective 60 days after publication in the Federal Register.

Source: Written by Brandi O. Brown, J.D.

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