EEOC Finalizes PWFA Regulations

On Monday, the Equal Employment Opportunity Commission (EEOC) finalized its Pregnant Workers Fairness Act (PWFA) regulations, reinforcing its broad view of “pregnancy, childbirth, or related medical conditions” put forth in its initial August 2023 proposed regulations.

The Final Rule is located here: https://public-inspection.federalregister.gov/2024-07527.pdf

Background:

Signed by President Biden in December 2022, the PWFA took effect in June 2023 and requires employers with at least 15 employees to consider employee and applicant accommodation requests related to pregnancy, childbirth, or related medical conditions. Like the ADA, an employee’s request for accommodation under the PWFA remains subject to an employer’s evaluation of whether the accommodation would pose an undue hardship.

The EEOC issued proposed regulations as part of the Notice of Public Rulemaking process in August 2023, and accepted public comments on the proposed regulations until October 2023. Since October, the Commission has been reviewing the public comments, preparing responses to those comments, and preparing a Final Rule for a Commission vote. The Commission’s leadership panel voted on the Final Rule on April 3, 2024.

Biggest Takeaways:

1.Broad Definition of “Pregnancy, Childbirth, or Related Medical Conditions.”

The most significant of several key developments contained in the final regulation is that the regulation will require employers to accommodate applicants and workers who need time off or other workplace modification for an abortion procedure or recovery. Of the nearly 100,000 comments the EEOC received in response to its August 2023 Notice of Public Rulemaking, almost 94,000 were related to whether the EEOC should include or exclude abortion from the definition of “pregnancy, childbirth, or related medical conditions.”

Beyond abortion, the Final Rule contains a very broad definition of “pregnancy, childbirth or related medical conditions” and includes a non-exhaustive list of possible circumstances that may fall into that broad definition, including: current, past and potential pregnancy; infertility and fertility treatment; use of contraception; termination of pregnancy; pregnancy-related sickness; lactation and issues associated with lactation; and menstruation.

2. Light Duty and Temporarily Suspending One or More Essential Job Functions Are Potential Reasonable Accommodations.

The Final Rule provides a long list of potential job modifications that employers will need to consider, including modifications that have not generally been considered reasonable accommodations under the ADA, including: light duty and temporarily suspending one or more essential job functions.

Other examples of reasonable accommodations listed in the Final Rule include:

• Frequent breaks
• Sitting/standing
• Schedule changes, including part-time work and paid and unpaid leave
• Telework
• Parking
• Modification of existing facilities/work environment
• Job restructuring

The Final Rule and Interpretive Guidance also provide examples of how certain types of requests for accommodation should be analyzed to comply with the PWFA.

3. Proceed Cautiously When Requesting Medical Documentation To Substantiate An Employee’s Accommodation Request.

An employer’s ability to request medical documentation to substantiate an employee’s accommodation request is more limited under the PWFA as compared to the ADA.

The EEOC has said that it expects that employers will be able to provide accommodations following “nothing more than a conversation or an email between the employee and their supervisor.” As a result, the Final Rule allows employers to seek supporting documentation from an employee, and the employee’s healthcare provider, only under certain circumstances and only to the extent the documentation is the minimum sufficient to: (1) confirm the physical or mental condition; (2) confirm the condition the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical condition; and (3) describe the adjustment or change at work that is needed due to the limitation.

The Final Rule also allows any health care provider familiar enough with an individuals’ circumstances to provide the information (whether or not they are treating the individual for the condition at issue) and prohibits an employer from requiring an employee to be examined by a health care provider of the employer’s choosing.

4. Don’t Skip The Appendix

The Commission has developed Interpretive Guidance, to be included as an Appendix to the Final Rule, with the purpose of addressing and explaining the major concepts pertaining to the PWFA. The Interpretive Guidance provides expanded discussion and examples of concepts such as: how an employee may request a reasonable accommodation, examples of accommodations that allow a qualified employee to alleviate pain or risk of health, examples of situations where an employer should provide interim reasonable accommodations, and additional discussion and examples of the Final Rule’s non-exhaustive list of possible reasonable accommodation examples.

Additionally, the Interpretive Guidance provides expanded discussion and examples of certain PWFA definitions, which is particularly helpful for terms that have a different meaning under the PWFA as compared to the ADA.

For example, under the ADA, an employee would not be “qualified” if they could not perform one or more of the essential functions of the position, with or without a reasonable accommodation. Under the PWFA and the Final Rule, an employee is “qualified” even if they cannot perform one or more of the essential functions of their position with or without reasonable accommodation, provided three conditions are met:

• (1) the inability to perform an essential function(s) is for a temporary period;
• (2) the essential function(s) could be performed in the near future; and
• (3) the inability to perform the essential function(s) can be reasonably accommodated.

What’s Next?

The Final Rule will go into effect 60 days after publication in the Federal Register. Publication of the Final Rule of is set for Friday April 19, 2024 (making the Final Rule effective on June 18, 2024). Court action could delay the effective date of the Final Rule.

What Now?

Covered employers should consider taking a number of PWFA compliance steps before the Final Rule’s June 18, 2024 effective date, including:

• Become familiar with the regulations, including the accommodations that the EEOC believes are “reasonable” under the PWFA;
• Consider training both the employer’s HR departments and front-line supervisors on the new regulations;
• Consider drafting PWFA-specific accommodation policies and processes (including PWFA compliant accommodation request forms and medical certification forms)

If you have any questions about the impact of the final regulations on your organization, please contact your Miller Johnson attorney or the authors of this alert.