The United States Equal Employment Opportunity Commission (“EEOC”) has issued a final rule to implement the Pregnant Workers Fairness Act (“PWFA”). The final rule, which aims to provide clarity regarding the protections afforded to employees and duties imposed upon employers under the PWFA, is set to be published in the Federal Registrar on April 19, 2024. It will thereafter become effective on June 18, 2024, 60 days after its publication.

The PWFA became effective on June 27, 2023 and builds on the protections afforded to pregnant workers under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”). The PWFA requires covered entities to provide their employees with reasonable accommodations for a known limitation related to, affected by or arising out of pregnancy, childbirth or a related medical condition, unless it would impose an undue hardship on the employer. Private employers with more than 15 employees are subject to the PWFA, and the PWFA applies both to current employees and job applicants.

The EEOC’s final rule follows a notice and comment period during which the agency received approximately 100,000 public comments after issuing its Notice of Proposed Rulemaking on August 7, 2023. Per the EEOC’s press release announcing the issuance of the final rule, the final rule “provides clarity to employers and workers about who is covered, the types of limitations and medical conditions covered, how individuals can request reasonable accommodations, and numerous concrete examples.”

What Employers and Employees Can Expect From the Final Rule

In a 408-page document, the EEOC’s final rule, and accompanying interpretive guidance, addresses an array of topics related to the interpretation and enforcement of the PWFA. Here are some of the highlights of what employers and employees can expect from the final rule and its guidance:

• An employee filing a charge or claim under the PWFA will utilize the same process as charges and claims brought pursuant to Title VII. Similarly, the remedies available to PWFA plaintiffs are the same as those available to Title VII plaintiffs. Similar to the ADA, an employee’s damages may be limited if the employer makes a good faith effort to meet the need for a reasonable accommodation.
• Regarding the definition of “known limitation”, the EEOC has interpreted the term “related to, affected by, or arising out of” to be an inclusive term. This means that pregnancy, childbirth or related medical conditions do not need to be the sole, the original or even a substantial cause of the “known limitation” that underlies the employee’s accommodation request. Rather, the known limitation must only be “related to, affected by, or arising out of” pregnancy, childbirth or the related medical condition.
• An employee’s “known limitation” does not need to qualify as a disability under the ADA in order to be protected by the PWFA.
• The final rule explicitly states it is readily apparent that certain medical conditions such as lactation, stillbirth and “having to or choosing not to have an abortion” are related to pregnancy and childbirth.
• The PWFA and ADA share many terms such as “essential function”, “reasonable accommodation”, “undue hardship” and “interactive process”. Though most terms from the ADA have the same or very similar definitions under PWFA, the EEOC has provided numerous examples and explanations of how these terms, among others, are to be interpreted and applied under the PWFA.
• The EEOC has denoted certain accommodations commonly requested by pregnant employees that will be found to be reasonable accommodations in “virtually all cases.” Among these accommodations are: (1) allowing an employee to carry water or keep water nearby; (2) allowing additional restroom breaks, as needed; (3) allowing sitting for employees who are required to stand and vice versa; and (4) allowing breaks to eat and drink, as needed.

The full text of the final rule and its accompanying interpretive guidance can be found here and a summary of its key provisions can be found here.

Covered entities should nevertheless remain cognizant of the additional requirements and duties that the final rule imposes upon them. With the PWFA already in effect, the EEOC actively accepting and investigating PWFA charges and the final rule becoming effective in the coming months, employers should review their accommodation policies and practices as soon as possible to ensure compliance with the PWFA.

If you have any questions about how the EEOC’s final rule may apply to or affect you or your employees, please reach out to Dinsmore’s Labor and Employment team.