When Congress passed the Pregnant Workers Fairness Act (PWFA), which has been in effect since June 27, 2023, it directed the EEOC to issue implementing regulations and provide examples of reasonable accommodations. On April 15, 2024, the EEOC published its 408-page final rule and interpretive guidance, with the final rule to take effect on June 18, 2024.
The EEOC retained its expansive reading of "pregnancy, childbirth, and related medical conditions" to include current pregnancy, past pregnancy, potential pregnancy, lactation, use of contraception, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, having or choosing not to have an abortion, among others. The regulations confirm the physical and mental condition that leads an employee or applicant to request an accommodation can be modest, minor or episodic, and there is no requirement that conditions arise to a specific severity threshold.
The definition also includes an employee or applicant who cannot perform an essential function of the job for a temporary period, but the person is expected to be able to perform the essential function in the near future, if the inability to perform the essential function can be reasonably accommodated without undue hardship. The final rule finds "in the near future" as generally 40 weeks from the start of the temporary suspension of an essential function, if the accommodation is being sought for a current pregnancy. The final rule does not define "in the near future" for childbirth and related medical conditions, leaving this to be determined on a case-by-case basis, and noting only that "in the near future" does not mean indefinitely.
There will be legal challenges to the rule under the Administrative Procedure Act that the EEOC exceeded its authority by including abortion, as it was not mentioned explicitly in the PWFA and there is some legislative history that the omission was intentional. The EEOC did say in its final rule that individuals may object to abortion's inclusion due to "sincere, deeply held convictions" that are often part of their religious beliefs. Further, the EEOC has said its PWFA rules cannot be used to require employer-sponsored health plans to pay for abortions, and that it expects that accommodations would likely be limited to unpaid time off for workers seeking the procedure. The Commission plans to handle religious exemption requests on a case-by-case basis.
The final rules also include examples of reasonable accommodations for workers, such as water, food, or restroom breaks; telework; temporary reassignment; and time off for healthcare appointments or to recover from childbirth or miscarriage. The rules say that employers should only seek supporting documentation for accommodations when reasonable.
The EEOC emphasizes that the "interactive process" should be a "simple process," and the individual, or their representative, must only identify the relevant limitation and the need for an adjustment at work to trigger an employer's obligation to engage in the interactive process. The EEOC encourages employers to respond expeditiously to employees' requests and to consider granting an accommodation request on an interim basis even if the employer believes it needs additional information.
This article is part of our June 2024 Newsletter.
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