EEOC Issues Final PWFA Rule: 5 Keys HR Needs to Know

The Equal Opportunity Employment Commission (EEOC) has issued the long-awaited final PWFA rule, slated to be published in the Federal Register tomorrow and then take effect 60 days later – on June 18, 2024.

Here’s a quick recap of the law — and the latest compliance developments you need to know.

Overview of the PWFA

As you probably recall, the Pregnant Workers Fairness Act took effect in June 2023.

Under the law, employers with 15 or more employees must engage in the interactive process with qualified employees (and applicants) and make reasonable accommodations for pregnancy, childbirth and related medical conditions — as long as the accommodations do not pose an undue hardship on the employer.

Tasked with PWFA oversight, the EEOC was directed to release compliance regulations.

In August 2023, the EEOC unveiled proposed regs, and the public was invited to submit comments. The agency received and reviewed about 100,000 comments before issuing this final rule.

Highlights from the final PWFA rule

1. Broad coverage includes abortion

Mirroring the proposed regs, the final rule adopts a broad definition of “pregnancy, childbirth and related medical conditions,” covering a wide range of conditions that occur before, during and after pregnancy, including but not limited to:

• Fertility and infertility treatments
• Conditions commonly related to pregnancy, including preeclampsia, nausea, vomiting, edema, carpal tunnel syndrome, etc.
• Menstruation
• Lactation issues, including breastfeeding and pumping in the workplace
• Termination, including abortion, miscarriage and stillbirth, and
• Postpartum depression.

The final rule is 408 pages, reflecting “the EEOC’s deliberation and response to the approximately 100,000 public comments received on the Notice of Proposed Rulemaking,” the agency said. Many of the comments expressed concerns about the abortion accommodation requirement.

The PWFA does not require or forbid “an employer to pay for health insurance benefits for an abortion,” the EEOC pointed out in the final rule. Nor does it require any accommodation that would require an employer “to pay any travel-related expenses for an employee to obtain an abortion.”

Rather, the agency said it expects the most common abortion-related accommodation request to be for time off an appointment or recovery – and that time off can be unpaid unless “the employer’s policies provide otherwise.”

The final rule also addresses employers’ concerns. It provides info on how employers can assert defenses or exemptions, including those based on religion, as early as possible in the charge processing. Plus, the EEOC said it will consider such requests on a case-by-case basis.

Regardless, it’s a hot-button issue, even within the agency itself. For example, on LinkedIn, EEOC Commissioner Andrea Lucas posted a 16-page statement on her vote to disapprove the final rule.

As everyone knows, the Dobbs ruling that overturned Roe put the abortion controversy back on the front burner. As a result, we may see some challenges to the rule based on the abortion accommodation requirement.

2. List of potential accommodations

The final rule also reiterated the EEOC’s stance that four types of accommodation are almost always reasonable. As you may recall, the proposed regs included a short list of “simple modifications” that will rarely impose an undue hardship. They are:  

• Allowing an employee to carry water and drink, as needed, in the employee’s work area
• Allowing an employee to take additional restroom breaks as needed
• Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, and
• Allowing an employee breaks as needed, to eat and drink.

Here’s a non-exhaustive list of additional potential accommodations: job restructuring; schedule changes; additional breaks and time off; modifying PPE, uniforms, and equipment; remote work; light duty; and temporarily suspending essential functions.

3. Get ready to suspend essential job functions

You might’ve done a double-take on that last accommodation in the list above. It’s not a mistake. When it comes to “qualified individuals,” the PWFA is broader than the ADA.

The final rule clarifies that the PWFA defines a “qualified individual” as one who can perform the essential functions in the near future. So in some cases, temporarily suspending one or more essential job functions will be a reasonable accommodation under the PWFA. The EEOC defined the terms:

• “Temporary” is defined as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future’.”
• “In the near future” means “generally 40 weeks,” the timeframe of an average pregnancy. 

4. No magic words; no severity threshold

The final PWFA rule says employees don’t have to use any specific language when asking for accommodation. It clarifies that no magic words are needed.

Moreover, there is no severity threshold for accommodation requests. Employees may seek accommodations for a “modest, minor and/or episodic problem or impediment” related to healthy and normal pregnancies.

5. High bar for undue hardship

The PWFA mirrors the ADA in many ways. Both laws require employers to provide reasonable accommodation absent undue hardship.

As noted above, the PWFA requirement extends farther than those under the ADA, requiring employers to temporarily suspend essential functions of the job in some instances.

So what does undue hardship mean here – and what must employers consider when determining whether an accommodation would create undue hardship?

Under the final PWFA rule, employers may consider the following factors to determine whether an accommodation would create undue hardship:

• The length of time an applicant or employee will be unable to perform the essential function(s)
• Whether there is work for the employee to accomplish
• The nature of the essential function, including its frequency
• Whether the employer has provided other employees in similar positions who are unable to perform the essential function(s) of their positions with temporary suspensions of those functions and other duties
• Whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s) in question; and
• Whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.