EEOC Publishes Final Rule Clarifying Critical Components of the Pregnant Workers Fairness Act

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced in a press release its implementation of a Final Rule on the Pregnant Workers Fairness Act (“PWFA”), published that day in the Federal Register.  The Final Rule fundamentally extended the PWFAs protections, broadly defining what had been ambiguous phrases to expand the scope of individuals qualifying for accommodations, when employees and applicants for employment may seek an accommodation, and how employers should engage with them upon receiving a request for accommodation.

Below are three key takeaways, which employers should consider in advance of the Final Rule’s June 18, 2024 effective date:

1. The Final Rule broadens the PWFA’s definition of who qualifies for an accommodation.
   The PWFA, in effect since June 27, 2023, requires employers with fifteen or more employees to provide reasonable accommodations for employees and applicants with limitations relating to, or caused by, pregnancy, childbirth, or other “related medical conditions.” The Final Rule now defines the phrase “related medical conditions” to include physical and mental conditions originating during pregnancy, as well as pre-existing conditions exacerbated by pregnancy or childbirth.
   
   
2. The Final Rule expands the PWFA beyond the traditional framework of the ADA.
   The Americans with Disabilities Act (“ADA”), in effect since 1990, provides that employers must engage in an interactive process with ‘qualified’ employees – those who have a physical or mental impairment that substantially limits a major life activity – to determine whether a reasonable accommodation is available to enable the employee to perform the essential functions of his or her position with such accommodation. Compared to the ADA’s “substantially limits” definition, the PWFA “defines a ‘qualified’ employee to include employees whose inability to perform one or more essential functions of the job is temporary, who will be able to perform the essential functions ‘in the near future,’ and whose inability to perform essential function(s) can be reasonably accommodated without undue hardship.” According to the Final Rule, the PWFA allows employees with modest, minor, or episodic conditions to request an accommodation, so long as they are able to perform the essential function of the job “in the near future.” The Final Rule now clarifies “near future” to generally mean a forty-week period for conditions relating to a current pregnancy. The EEOC generally otherwise leaves the meaning of “near future” open for conditions related to childbirth, requiring employers to work on a case-by-case basis to address such accommodation requests.
   
   
3. The Final Rule incentivizes employers to engage in a more expedient and open-ended “interactive process” with workers seeking PWFA accommodation.
   The EEOC uses the Final Rule, and its interpretative guidance, to encourage employers to respond expeditiously to employees’ requests by granting interim accommodations allowing the employee to continue working, whether or not the employer requires additional information or medical documentation to evaluate the employee’s request. In return, employers are now permitted to use a grant of interim accommodation as evidence to contest an employee’s claim of unnecessary delay. Still, employers should be cautious in providing an interim accommodation rather than simply granting an accommodation, or even requesting additional medical documentation, where an accommodation is obvious and available, as doing so may ultimately violate the PWFA.

Conclusion

In addition to these key takeaways, Final Rule describes: (1) examples of accommodation requests that are de facto reasonable; (2) situations where employers will need to temporarily suspend a position’s essential functions; (3) potential employer defenses, including religious-based exemptions, to assert in response to failure to accommodate claims; and (4) limitations on employer requests for supporting documentation.  

Crowell attorneys are available to explain how these examples and restrictions may apply to your employment practices and policies, and to help ensure compliance with all PWFA-related legal obligations.