EEOC Issues Broad Final Regulation Under the Pregnant Workers Fairness Act

New York, N.Y./Newark, N.J. (May 9, 2024) - The Equal Employment Opportunity Commission (EEOC) recently issued a final regulation and interpretative guidance to implement the Pregnant Workers Fairness Act (PWFA), taking a broad view of the statutory language. This article explores the many facets of the regulation and guidance and details a pending legal challenge to the regulation.

Noteworthy Highlights

The Equal Employment Opportunity Commission (EEOC) issued a final regulation and interpretative guidance to implement the Pregnant Workers Fairness Act (PWFA) which goes into effect on June 18, 2024.
The EEOC’s final regulation and interpretative guidance take a broad reading of the PWFA and define an accommodation process that is similar to, but contains import deviations from, the typical Americans with Disabilities Act (ADA) accommodation process requiring review and modification of HR procedures.
The final regulation broadly defines “pregnancy, childbirth, and related medical conditions” and thereby extend protections to a wide variety of physical and mental conditions including contraception, infertility/fertility treatments, mental health conditions, and termination of a pregnancy.
Employers may be required to temporarily suspend the essential functions of an employee’s job to accommodate pregnancy-related limitations.
The final regulation provides examples of reasonable accommodations, including four common accommodations that will be deemed presumptively reasonable absent unusual circumstances.
An employer’s ability to request supporting documentation is significantly limited and narrow in scope.
Legal challenges have been filed by 17 Republican state attorneys general to invalidate the regulations. It remains to be seen whether any challenges will lead to a stay on the effective date of the final regulation or a ruling invalidating the regulations in whole or part.

Background of the Pregnant Workers Fairness Act

The PWFA went into effect on June 27, 2023. The PWFA requires employers with 15 or more employees to provide reasonable accommodations to a qualified employee or applicant with known limitations relating to pregnancy, childbirth, or related medical conditions unless the accommodation would cause an undue hardship on the employer’s business operations. The statute also requires employers to engage in an interactive process to evaluate reasonable accommodations and prohibits retaliation against individuals who request or use an accommodation, oppose unlawful acts or practices, or participate in any investigation, proceeding, or hearing under the PWFA.

Importantly, an employee has no right to a reasonable accommodation based on association with an individual who may have a limitation covered by the PWFA. The PWFA also does not apply to time requested by a parent to bond with a child or for childcare needs.

Congress directed the EEOC to draft regulations interpreting the PWFA. The EEOC issued its proposed regulations in August 2023. After consideration of extensive public comments, the EEOC recently issued the final regulation, which also provides interpretive guidance that represents the EEOC’s interpretation and enforcement position when evaluating employer compliance with the PWFA. The key provisions of the final regulations are discussed below.

The EEOC’s Broad Interpretation of the PWFA

The EEOC has interpreted the PWFA in a broad manner that some argue extends the statute’s reach beyond what Congress intended. Despite numerous comments expressing concern over the breadth of the definitions in the proposed regulation, the EEOC retained the expansive definitions of “known limitation” and “pregnancy, childbirth, and related medical conditions.”

A known limitation is defined in the PWFA as a “physical or mental condition related to, affected 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 regulation emphasizes that a known limitation can be modest, minor, and/or episodic and does not need to constitute a disability under the ADA. Additionally, the limitation can be related to the need to maintain the employee’s health or the health of the pregnancy. This means an employee may seek accommodations to avoid workplace exposures, such as secondhand smoke, which can impact the health of the pregnancy.

The EEOC also retained an expansive view of “pregnancy, childbirth or related medical conditions,” which include a wide variety of physical or mental conditions including: past, current, or potential pregnancies; lactation; postpartum depression; use of contraception; menstruation; infertility and fertility treatments; miscarriage; stillbirth; and having or choosing not to have an abortion, among other conditions. The EEOC’s interpretation of “related medical conditions” not only includes new physical and mental conditions originating during pregnancy and childbirth, but also any preexisting conditions that were exacerbated by pregnancy or childbirth, such as anxiety, chronic migraine headaches, high blood pressure, and carpal tunnel syndrome. One of the EEOC Commissioners who voted against the final regulation argued that the EEOC’s interpretation “extends the new accommodation requirements to reach virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system.”

Qualified Individuals May Include Those Who Cannot Perform the Essential Functions of the Job for a “Temporary Period”

A “qualified” employee or applicant includes an individual who can perform the essential functions of a job with or without a reasonable accommodation. Notably, it also includes an individual who cannot perform one of the essential job functions for a “temporary period,” provided the essential function (i) can be performed “in the near future” and (ii) the inability to temporarily perform the essential function can be reasonably accommodated.

Although the final regulation defines “in the near future” as within 40 weeks of an individual’s current pregnancy, the regulations fail to include in the definition any specific timeframe for accommodation requests tied to “childbirth or related medical conditions.” Employers will be required to make these types of determinations on a case-by-case basis. Therefore, so long as the individual is not seeking indefinite leave, it appears that employers may be required to potentially grant accommodations for an extended period of time unless they can show undue hardship. Many business and human resource groups that supported the passage of the PWFA oppose the final regulation’s definitions of “related medical condition,” “temporary,” and “in the near future” as going beyond the legislative intent.

Reasonable Accommodations and Predictable Assessments

Although the final regulation largely adopts the ADA’s definition of reasonable accommodation and interactive process, the EEOC emphasizes that the process should be simple and straightforward and administered with the temporary and often obvious nature of the limitations in mind. In order to avoid lengthy and intrusive documentation requests, the final regulation provides that the interactive process does not require writings in any specific format or on a specific employer mandated form or that the employee seeking accommodation use any particular words. The EEOC also added information to the Interpretive Guidance to highlight the flexible, individualized nature of the interactive process, which it believes can often be accomplished with brief conversations and email exchanges.

An employer that unnecessarily delays in providing a reasonable accommodation can be deemed to have violated the PWFA if the delay constitutes a failure to accommodate. Although not specifically required, the EEOC encourages employers to implement interim reasonable accommodations as a best practice to avoid unnecessary delays in responding to accommodation requests. An interim reasonable accommodation should generally be one that allows an employee to continue working. Accordingly, the final regulation provides that leave will not be considered a reasonable interim accommodation unless the employee selects or requests leave. When leave is selected, employers should ensure there is proper documentation to support that it was the employee’s choice.

In addition to providing a list of possible reasonable accommodations such as job modifications, schedule changes, light duty, and policy modifications, the final regulation also identifies four accommodations that will “in virtually all cases” be deemed reasonable accommodations that do not present an undue hardship. These “common sense, low cost” accommodations are: (1) carrying or keeping water near and drinking, as needed; (2) allowing additional restroom breaks, as needed; (3) allowing sitting for those whose work requires standing and standing for those whose work requires sitting, as needed; and (4) allowing breaks to eat and drink, as needed. Absent unique circumstances, any delay in providing these predictable assessment accommodations will likely be deemed an unnecessary delay that could constitute a violation of the PWFA.

Limitations on Supporting Documentation

The EEOC also has placed limits on when an employer can request documentation to substantiate an individual’s need for an accommodation. Employers may only request supporting documentation limited to the “minimum necessary” as needed to: (1) confirm the physical or mental condition; (2) confirm the condition is related to, or affected by pregnancy, childbirth, or related medical conditions; and (3) obtain a description of the adjustment or change at work that is needed due to the limitation. To help guide employers, the EEOC notes several situations where the need for supporting documentation would not be deemed reasonable, including:

When the physical or mental condition or limitation is obvious and the employee provides a self-certification;
When the employer already has sufficient information to determine whether the employee has a physical or mental condition related to pregnancy and needs a workplace accommodation due to the limitation;
When the accommodation request relates to one of the “predictable assessments";
When the accommodation request relates to lactation or the need to pump at work, and
When the requested accommodation is available to other employees without the need to submit documentation.

The EEOC’s stance on documentation is another notable departure from the ADA interactive process and reflects the EEOC’s desire to simplify the process and minimize overly broad or invasive documentation requests.

Inevitable Legal Challenges Filed

On April 25, 2024, 17 Republican state attorneys general filed suit in the U.S. District Court for the Eastern District of Arkansas seeking to invalidate the Regulations (States of Tennessee et al. v. Equal Employment Opportunity Commission, case no. 2:24-cv-00084). The suit argues that the EEOC exceeded its constitutional authority when interpreting the PWFA to encompass abortion-related workplace accommodations. In essence, the plaintiffs allege that, should the regulations stand, Tennessee and its co-plaintiff states will be forced to require employers to provide accommodations for workers having voluntary abortions of healthy pregnancies, a practice that is illegal under such states’ laws. The suit further alleges that the PWFA was passed "to promote safe worker pregnancies while stressing no abortion coverage," and that the law's statutory history "overwhelmingly cuts against" the EEOC's interpretation.

A litany of other challenges have been raised, including the argument that states will be irreparably harmed by having to shoulder increased costs related to increased benefits, compliance and productivity losses from granting leave.

The states that signed the suit are Tennessee, Arkansas, Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.

What Employers Should Do Now

Notwithstanding the pending litigation and the potential temporary stay of the June 18, 2024 effective date or possible invalidity of all, or portions of, the final regulation, employers should begin to prepare for the effective date. Employers should: (1) review the final regulation and Interpretive Guidance to become familiar with the EEOC’s enforcement position, including the specific examples provided in the Interpretive Guidance; (2) review and, as necessary, consider modifying their pregnancy and lactation accommodation policies, procedures, forms, and documentation to address any changes in law occasioned by the final regulation (including the limitation on supporting documentation); and (3) train managers and supervisors on how to recognize and respond to accommodation requests to avoid unnecessary delay in responding to predictable assessment or other accommodation requests. Employers that can establish that they made a good faith effort to work with qualified individuals and their request for accommodations will be better positioned to potentially defend against employee claims of PWFA violations.

Finally, employers should remember that the PWFA does not invalidate or supersede any state or local law that may provide equal or greater protection to employees affected by pregnancy, childbirth, or related medical conditions.

The employment attorneys of Lewis Brisbois are available to provide assistance to clients with these compliance issues. For more information, contact the authors of this alert.

Authors:

Bradley J. Bartolomeo, Partner

Diane Waters, Partner

Jacob Tebele, Associate

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Bradley Bartolomeo
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Diane Waters
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