On April 19, 2024, the EEOC published its final rule regarding the Pregnant Workers Fairness Act (“PWFA”). The PWFA requires covered employers to provide reasonable accommodations to qualified employees or candidates with a known limitation related to pregnancy, childbirth or related medical conditions absent undue hardship.

The final rule effectively tracks the proposed rule, which we previously covered here.  Some key provisions of the final rule are as follows:

  • The Commission broadly defines “related to, affected by, or arising out of” pregnancy, childbirth, or related medical conditions as including lactation, miscarriage, stillbirth, and “having or choosing not to have an abortion.” The Commission noted  that “a pregnancy, childbirth, or related medical condition does not need to be the sole, the original, or a substantial cause of the physical or mental condition at issue for the physical or mental condition” to fall under PWFA.
  • An employee’s limitations do not need to rise to the level of a disability under the Americans with Disabilities Act (“ADA”) to be eligible for accommodation under the PWFA. Instead, the limitations  can arise from a modest, minor, and/or episodic problem that is impacting an employee’s ability to maintain their health or the health of the pregnancy.
  • The rule provides examples of potential reasonable accommodations such as food, water, and restroom breaks. Importantly, however, under the PWFA, reasonable accommodation may also include a temporary reassignment or – in a provision that differs from the ADA – temporary suspension of an essential function of the job. Adopting the language of the ADA, the final rule defines the essential functions of a job as those affecting the time, manner, or location in which a task is performed.
  • Covered employers are limited in seeking documentation to support a request for accommodation to only circumstances where it is reasonable and necessary to determine if an employee is entitled to a reasonable accommodation under the PWFA. The documentation is “necessary”  only when it: (1) confirm the physical or mental limitation, (2) confirm that the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, and (3) describe the adjustment or change needed at work that is due to the limitation.
  • Examples of situations where documentation would not be reasonable include: (i) when both the condition at issue and the need are obvious and the employee provides self-confirmation of same; (ii) when the employee is seeking accommodation to carry/keep water with them, take additional restroom breaks and/or breaks to eat or drink, or to sit (if the job requires standing) or stand (if the job requires sitting); (iii) when the accommodation is related to a time and/or place to pump at work, other modifications related to pumping at work, or a time to nurse during work hours (where the regular location of the employee’s workplace makes nursing during work hours a possibility because the child is in close proximity), and the employee provides self-confirmation; and (iv) When the requested accommodation is available to employees without known limitations under the PWFA pursuant to the employer’s policies or practices without submitting supporting documentation. Further, and importantly, employers may not require that supporting documentation be submitted on a specific form and may not require that an employee seeking accommodation be examined by a health care provider selected by the employer.

It is noted that, shortly following publication of the final rule, state attorneys general in 17 states, led by Tennessee and Arkansas, filed a challenge to the final rule in the Eastern District of Arkansas. They argue that the EEOC’s inclusion of abortion-related accommodations to be “unconstitutional federal overreach.”  

Barring a successful challenge, the final rule is set to go into effect on June 18, 2024, sixty days after publication in the Federal Register. For more information regarding EEOC enforcement of the PWFA, including potential violations, please visit our previous blog post.

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Atoyia Harris Atoyia Harris

Atoyia Harris is a special employment law counsel in the Labor and Employment Department and a member of the Employment Litigation & Counseling Group. With bench trial, jury trial, and administrative hearing experience, Atoyia approaches each matter strategically to provide the best result…

Atoyia Harris is a special employment law counsel in the Labor and Employment Department and a member of the Employment Litigation & Counseling Group. With bench trial, jury trial, and administrative hearing experience, Atoyia approaches each matter strategically to provide the best result for her clients. She has successfully defended matters on a wide variety of issues.

Atoyia advises clients and conducts investigations and trainings on issues related to discrimination, harassment, and retaliation. Her practice also includes counseling clients on reductions-in-force, Covid-19 related matters, issues arising out of social movements including Black Lives Matter and #MeToo, and other sensitive employment issues.

Atoyia is co-chair of the Firm’s Black Lawyers Affinity Group, serves as a member of the Firm’s Associate Council, and is on the Proskauer Women’s Alliance Steering Committee.

Active in the New Orleans legal community, Atoyia is a member of the Young Lawyers Board for the Federal Bar Association’s New Orleans Chapter and other organizations. She is also a member of the national Defense Research Institute’s Membership Committee and Diversity and Inclusion Planning Committee.

Atoyia received her J.D. with an International Law Certification from Loyola University New Orleans College of Law. Atoyia served as the Moot Court Selection Chair and staff member of the Loyola Law and Technology Journal. While in law school, Atoyia interned as a law clerk for the Honorable Jay C. Zainey at the United States District Court for the Eastern District of Louisiana and the Honorable Robin Giarrusso at the Orleans Parish Civil District Court. Atoyia was also a member of the award-wining Robert F. Wagner Labor and Employment Moot Court Team.

Prior to law school, Atoyia received her Bachelor of Music in Industry Studies with emphasis in classical piano from Loyola University New Orleans and was member of the Loyola University women’s basketball team.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of L.D. Jones L.D. Jones

Larenz Jones is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.