EEOC Announces Final Rule Providing Guidelines under the PWFA

On April 15, 2024 the Equal Employment Opportunity Commission (EEOC) announced its finalized regulations of the Pregnant Workers Fairness Act (PWFA). Effective last year, the PWFA requires employers to provide reasonable accommodations to employees and applicants with known physical limitations related to pregnancy, childbirth, or related medical conditions. But while the law went into effect on June 27, 2023, the EEOC is just now announcing its final rule providing guidance as to how this law will be interpreted and administered. 

Among the issues addressed by the final rule is the scope of conditions covered by the PWFA. While the law covers pregnancy, childbirth, and related medical conditions, what specific conditions are considered protected are not as clear. The EEOC’s proposed rule announced in 2023 caused some controversy with some believing the protections necessary to provide full protections to pregnant employees, with others believing the protections afforded went beyond Congressional intent. Regardless, the final rule announced today largely mirrors the 2023 proposal. The rule provides myriad examples of protected conditions, including potential or intended pregnancy (such as infertility, fertility treatment, and the use of contraception), conditions concerning the termination of pregnancy (including via miscarriages, stillbirths, or abortion), conditions which may arise as a result of pregnancy, (such as back or joint pain, migraines, nausea, or anxiety), conditions related to breastfeeding, and conditions related to menstruation. A full listing of examples provided by the EEOC can be found within the final rule.

Additionally, the final rule provides examples of what types of accommodations would be considered reasonable, including additional break time, time off for health care appointment, temporary reassignment, a change in work schedule, teleworking, temporary suspension of one or more essential functions of a job, and unpaid time off. 

Crucially, the final rule provides guidance as to how employers must respond to requests for an accommodation under the PWFA. The PWFA requires employers to engage in the interactive process when they become aware of the potential need for an accommodation. Employers with experience responding to requests under the Americans with Disabilities Act (ADA)—which also requires an interactive process—may fall into a trap of believing these processes are the same. They are not, as certain actions routinely used as a part of an ADA interactive process are not permitted under the PWFA. For instance, employers are prohibited from requiring medical certification before granting certain requests for an accommodation, and rather must rely on an employee’s self-certification. Additionally, employers may not require the requesting employee be examined by a health care provider of its choosing.

The final rule announced by the EEOC will be formally published on April 19, 2024, and therefore take effect June 18, 2024. Even before then, however, the regulations provide strong guidance as to how the EEOC will approach claims made under the PWFA. Employers looking to review their policies and ensure they are ready to comply with the requirements under the PWFA should contact a member of KMK’s Labor & Employment Practice Group.

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