EEOC Announces Final Regulation on Pregnant Workers Fairness Act

The EEOC just issued its long-awaited final regulation on the Pregnant Workers Fairness Act (PWFA). The final regulation takes effect on June 18, 2024, sixty days from its slated April 19, 2024 publication in the Federal Register. The final regulation can be found here.

Requirements

The PWFA requires a covered employer to provide reasonable accommodation to workers (including applicants) for known limitations related to pregnancy, childbirth, or related medical conditions. The requirement applies to employers with fifteen or more employees, “unless such [a] covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business.”

Under the PWFA, the employee, or the employee’s representative, must communicate to their employer about their known limitations. And, under the final regulation, in order for the communication to satisfy the “made to an employer” requirement, it must be made to a supervisor, a manager, someone who has supervisory authority for the employee or who regularly directs the employee’s tasks, human resources, or under the employer’s policies for making accommodation requests.

The Reasonable Accommodation Process

A key aspect of the PWFA is its emphasis on engaging in the interactive accommodation process, much like the process required by the ADA. The interactive process is collaborative, requiring employers to work closely with their pregnant employees to identify appropriate accommodations to allow them to perform the essential functions of their role.

“Reasonable accommodations” under the PWFA may include modified work schedules, temporary reassignments, or adjustments to work duties tailored to meet the employee’s needs. However, employers are not obligated to provide accommodations if doing so would impose an undue hardship.

 The EEOC’s final regulation lists specific examples of possible reasonable accommodations under the PWFA, including:

•  Frequent breaks;

• Use of leave;[1]

• Sitting/standing;

• Schedule changes, part-time work, and paid and unpaid leave;

• Telework;

• Parking;

• Light duty;

• Making existing facilities accessible or modifying the work environment;

• Job restructuring;

• Temporarily suspending one or more essential functions;

• Acquiring or modifying equipment, uniforms, or devices;

• Adjusting or modifying examinations or policies; and

• For reasonable accommodations pertaining to lactation breaks, breaks, dedicated spaces for lactation, and other modifications as required under the PUMP Act.

An accommodation is not reasonable if it imposes an undue hardship on the employer.  The definition of undue hardship is borrowed from the ADA and means significant difficulty or expense for the operation of the employer. The final regulation provides that an individualized assessment as to a potential modification of the employee’s role (see the above for examples outlined by the EEOC). Although there are no bright-line tests for how to conduct the individualized assessment, the EEOC suggests that some job modifications are de facto reasonable: (i) allowing an employee to carry or keep water near and drink, as needed; (ii) allowing an employee to take additional restroom breaks, as needed; (iii) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (iv) allowing an employee to take breaks to eat and drink, as needed.

And, like the proposed rule, the final regulation provides that an employer is not required to seek supporting documentation from an employee or applicant who requests an accommodation under the PWFA, although it may choose to do so only when reasonable under the circumstances to “determine whether the employee has a condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions[.]”  

Limited Blocked Enforcement

On February 27, 2024, a federal judge for the U.S. District Court for the Northern District of Texas blocked enforcement of the PWFA against the State of Texas in holding that the U.S. Congress passed the law in violation of the U.S. Constitution’s quorum requirements. See State of Texas v. Merrick Garland, et al., 5:23-CV-034-H 2024 WL 967838 (N.D. Tex. Feb. 27, 2024). This ruling suspends enforcement of the PWFA with respect to public employers in Texas. However, private employers in Texas (and the rest of the U.S.) must still adhere to the PWFA’s requirements.

This article is for informational purposes only and should not be considered legal advice. Employers should consult with their counsel if they have any questions regarding PWFA compliance under the final regulation.

Written by Shelby Taylor and Christie Newkirk from Carrington, Coleman, Sloman & Blumenthal, L.L.P.

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[1] Under the final regulation, employer may use leave as a reasonable accommodation but only if it is requested by the employee or if it is the only reasonable accommodation that does not cause an undue hardship on the employer.