EEOC Releases Final Rule Implementing Pregnant Workers Fairness Act

On April 15, the Equal Employment Opportunity Commission (EEOC) issued its long-awaited final rule to implement the Pregnant Workers Fairness Act (PWFA), which was passed on June 27, 2023. The PWFA requires public and private employers with 15 or more employees to provide reasonable accommodations for known limitations related to “pregnancy, childbirth, or related medical conditions,” unless the requested accommodation will cause the employer an undue hardship.

In the final rule, the EEOC maintains a broad definition of “pregnancy, childbirth, or related medical conditions,” which includes lactation, endometriosis, infertility, fertility treatments, miscarriages, postpartum limitations, and an employee’s choice to have or not have an abortion. As may be expected, the rule’s inclusion of “abortion” in this definition garnered polarized feedback among supporters and critics; however, the EEOC clarified that the PWFA does not require the employer to cover any monetary expenses for an employee to obtain an abortion. Rather, the most likely accommodation under the PWFA in these circumstances would be to offer leave to attend a medical appointment or for recovery — which, consistent with the Americans with Disabilities Act, does not need to be paid leave unless the employer’s policies provide otherwise.

The final regulations also provide numerous examples of what should typically qualify as a reasonable accommodation under the PWFA. For example, additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others to be made on a case-by-case basis.

The guidance encourages early and frequent communication between employers and workers to resolve requests for reasonable accommodations in a timely manner. It also clarifies that employers are not required to seek supporting documentation when an employee asks for a reasonable accommodation, and the employer should do so only when it is reasonable under the circumstances. For example, it is not reasonable to request medical documentation if the limitation and need for a workplace adjustment due to the limitation are obvious (such as a larger work uniform to accommodate pregnancy growth), nor is it reasonable to request documentation for breaks to use the restroom, eat, drink, sit, or stand.

The EEOC’s final regulations will go into effect on June 18. Employers should be aware that requests for accommodation due to pregnancy-related conditions or limitations are likely to be covered under the PWFA’s expansive scope, and personnel should be trained to identify and respond appropriately to such requests. Steptoe & Johnson’s attorneys can help you navigate these issues by drafting and revising policies, responding to requests for accommodation, defending against employees’ claims, and more.