Employment Law Report
What the EEOC’s Final Rule Implementing the PWFA Entails for Affected Employers and Qualified Employees
Written by: Tyson Gorman with assistance from Bradley Simpson, Wyatt Summer Associate
The Equal Employment Opportunity Commission (“EEOC”) recently issued its final rule and interpretive guidance concerning the Pregnant Workers Fairness Act (“PWFA”). Barring undue hardship on an entity’s business operations, the PWFA requires a covered entity to provide reasonable accommodations for a qualified employee’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The final rule is scheduled to become effective on June 18, 2024, although at least one suit challenging the rule is now pending (seventeen states have sued alleging, inter alia, the rule improperly requires employers to accommodate abortion procedures in states where those procedures are illegal).
The PWFA’s accommodation requirements apply to “covered entities,” which includes public and private employers with 15 or more employees, unions and employment agencies, and the federal government. Under this act, covered entities must provide reasonable accommodations for “qualified employees.” The PWFA’s use of “qualified employee” also encompasses applicants to a covered entity (the use of “employee” herein refers to both current employees and applicants.) The PWFA classifies employees who can perform the essential functions of their job with or without reasonable accommodations as qualified. However, the PWFA also treats employees unable to perform one or more job functions as qualified if the inability is temporary, the employee could perform them “in the near future,” and the employer could reasonably accommodate the temporary inability to perform.
The PWFA’s definition of “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” encompasses a broad range of limitations. The Act covers limitations stemming from ongoing pregnancies, such as doctor appointments, previous pregnancies (e.g., postpartum depression and lactating), and potential or intended pregnancies, including infertility issues, fertility treatment, and the use of contraceptives. Covered entities must provide reasonable accommodations and flexibility for obvious limitations like labor and delivery, episodic or day-to-day symptoms like morning sickness and menstruation, and any other condition affecting the employee’s health so long as it results from or relates to pregnancy, including – but not limited to – carpal tunnel, pelvic prolapse, anxiety and depression, and gestational diabetes. The PWFA also extends to an employee’s termination of a pregnancy resulting from abortion, miscarriage, or stillbirth. Notably, the PWFA only applies to the specific employee impacted by pregnancy, childbirth, or a related medical condition and does not cover a spouse or family member of a pregnant person.
The PWFA offers many examples of reasonable accommodations a covered entity might expect to implement for its qualified employees. Chief among these include adjustments to the accessibility of existing facilities, paid and unpaid leave, flexibility in the employee’s work schedule (including allowing telework), and temporary suspension of one or more job functions. A covered entity can only avoid providing a reasonable accommodation to a qualified employee if granting it would result in “undue hardship” to its business operation. The PWFA identifies several factors that contribute to a finding of undue hardship, but the analysis generally turns on the cost and expense of providing the accommodation compared to the benefit it yields, considering the entity’s available financial resources. Absent undue hardship, an employer must provide reasonable accommodations for its qualified employees’ known limitations to avoid violating the PWFA.
A qualified employee experiencing a limitation related to, affected by, or arising out of pregnancy, childbirth, or a related medical condition can initiate the accommodation process by making the limitation “known” to their employer. To do so, the employee or their representative must simply communicate the limitation and the need for an adjustment to their employer. That communication begins the “interactive process,” where the employer and employee collaborate to identify potential reasonable accommodations. The PWFA permits an employer to request supporting documentation to verify the limitation and its relationship to pregnancy or childbirth, but only where it is reasonable to do so per the circumstances. However, an employer may not request supporting documentation if they already knew about the limitation and provided an accommodation or if the limitation and need for accommodation is obvious (e.g., a pregnant employee requesting a larger uniform).
The PWFA applies to a substantial number of employers, covers a breadth of employees, and requires reasonable accommodations for a wide range of limitations resulting from and related to pregnancy and childbirth. Affected employers should familiarize themselves with the EEOC’s final rule and prepare for its implementation. Employers should recognize, above all, that the Act requires flexibility and broad interpretation. Furthermore, the PWFA notably does not preempt state laws that provide employees greater accommodations for pregnancies, childbirth, and related medical conditions. State laws that offer more benefits to employees than the PWFA must be complied with. Employers concerned about the final rule and its prospective application should consult their Wyatt, Tarrant & Combs labor and employment counsel.
