UPDATE: EEOC Releases Final Rules for Accommodating Pregnancy or Related Conditions

This week, the Equal Employment Opportunity Commission (“EEOC”) issued its final rules and accompanying interpretive guidance for implementation of the Pregnant Workers Fairness Act (“PWFA”). The PWFA, a new federal law that became effective in June 2023, requires most employers with 15 or more employees 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, unless the accommodation will cause the employer an undue hardship. While the PWFA builds upon existing protections against pregnancy discrimination under Title VII and the Americans with Disabilities Act, it fills in identified gaps in the legal protections for employees. 

The final rules apply the same language and meaning of what constitutes “pregnancy, childbirth, or related medical conditions” that is used in Title VII. “Pregnancy” and “childbirth” includes current pregnancy, past pregnancy, potential or intended pregnancy, and labor and childbirth. And “related medical conditions” are medical conditions that relate to pregnancy or childbirth and include, but are not limited to, things such as lactation, miscarriage, stillbirth, having or choosing to have an abortion, preeclampsia, and gestational diabetes. The final rules are extensive and provide detailed information to employers about who is covered; the types of limitations and medical conditions covered; how individuals can request accommodations; how employers must respond to requests for accommodations; when leave may be a reasonable accommodation; the type of supporting documentation an employer can and cannot request; the interactive process; what constitutes an undue hardship; information on how an employer may assert defenses or exemptions to compliance; and remedies available to employees for noncompliance. The EEOC also included numerous examples applying the rules to hypothetical situations. 

Many of the requirements and rules will be familiar to employers, as they borrow largely from existing protections like Title VII and the ADA; however, employers should be aware of some critical differences. Most significantly, the PWFA allows an employee to qualify for an accommodation even if the employee cannot perform an essential function of the job if the employee’s inability to perform the essential function is temporary and could be performed in the near future. The final rules define “temporary” and “in the near future” and provide a lengthy discussion on the rationale and application, which could be 40 weeks or more. The final rules also include a list of certain accommodations, referred to as “predictable assessments,” that “in virtually all cases” will be found to be reasonable including allowing an employee to carry water and drink in their work space; allowing an employee additional restroom breaks; allowing an employee to sit or stand as necessary; and allowing an employee extra breaks to eat and drink. Employers will need strong evidence of an undue hardship to deny employees a predictable assessment accommodation.  

Employers in Texas may be aware that a federal court in the Northern District of Texas issued an order blocking the enforcement of the PWFA against the State of Texas, its divisions, and its agencies. The court’s decision was based on a finding that the PWFA was passed using proxy voting which violated the Constitution’s quorum clause. This order does not apply to private businesses employers and most likely does not apply to public K-12 schools or other government employers not considered a division or agency of the State. Meaning many employers in Texas must continue to comply with the requirements of the PWFA and these new rules. 

Importantly, employers should keep in mind that an employee eligible for protections under the PWFA may also be eligible under various other federal and state laws such as the Family Medical Leave Act, (“FMLA”), ADA, and the recently enacted PUMP Act. Navigating these various protections and laws can be tricky even for the most seasoned professional.  If you have questions regarding best practices for complying with the new and existing federal obligations through policy revisions, website and handbook language, development of essential templates for the interactive process, or training, please contact Lisa Brown, Stephanie Hamm, or Amber King. 

For a more detailed review of the requirements of the PWFA, see Thompson & Horton’s previous blog post New Legal Requirements for Pregnant Workers Effective on June 27: Is Your Campus Ready?