On April 15, 2024, the EEOC issued a final rule and interpretive guidance on the Pregnant Workers Fairness Act (“PWFA”).  The final rule provides clarification on the law, which took effect June 27, 2023.

As you may recall, the PWFA requires a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.  Previously, the EEOC published a proposed rule clarifying the law, to which it received over 100,000 comments.  In response to the comments, the EEOC has issued the final rule which is similar to the proposed rule but makes certain changes and offers clarity on some open issues. 

Notably, the EEOC clarifies that the definition of “related medical conditions” includes abortion. The final rule points out that accommodations related to abortion remain subject to applicable exceptions and defenses, including both those based on religion and undue hardship. The following non-exhaustive list is provided for when accommodations would have to be made due to “pregnancy, childbirth or related medical conditions:”

• current, past, and potential pregnancy;
• infertility and fertility treatment;
• the use of contraception;
• termination of pregnancy – including via miscarriage, stillbirth, or abortion;
• pregnancy-related sicknesses, ranging from nausea or vomiting to edema, from preeclampsia to carpal tunnel syndrome, and many other pregnancy-related conditions;
• lactation and issues associated with lactation; and
• menstruation.

In addition, the definition of “employee” includes both an employee and applicant.  A “known limitation” is defined as a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, and may be “modest, minor, and/or episodic.”  Further, “pregnancy” can refer to not only an employee’s current pregnancy, but also a past, potential, or intended pregnancy.

Under the final rule, if the employee is pregnant, it is presumed the employee will be able to perform the essential function generally within 40 weeks of its suspension. Therefore, a reasonable accommodation may be the temporary suspension of an essential function or functions unless it would pose an undue hardship on the employer.

The final rule also provides non-exhaustive examples of limitations that may arise, reasonable accommodations that should be provided, and leave as accommodation for appointments, recovery for pregnancy, recovery from childbirth, and loss of a pregnancy or child.

Employers should familiarize themselves with the examples provided in the final rule, which can be found here: https://public-inspection.federalregister.gov/2024-07527.pdf.  The final rule will take effect 60 days after its publication in the Federal Register which will be on or around June 18, 2024.  Employers should review their policies to ensure they are in compliance with the law in light of the final rule.  Should you have questions regarding the final rule and new guidance, please contact Ali Law Group.

HRtelligence was created by the team at Ali Law Group, LLC.  Should you have any questions or need assistance, please contact Ali Law Group.

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