It has been a long road to this point, but the final Pregnant Workers Fairness Act (PWFA) regulations are here. We first blogged in early 2023 about the PWFA, which became effective in June 2023, and again last August when the EEOC published the lengthy draft regulations, and we encouraged you to comment. The EEOC received over 98,000 comments. Clearly, it’s been a hot topic. Finally, after six more months of waiting, the EEOC released its final rule — totaling over 400 pages — on Monday. You can download the unpublished version here.
Link to So, what now? So, what now?
One more countdown. On April 19, 2024, the EEOC will publish its final rule in the Federal Register and 60 days later (June 18, 2024) the final rule will be effective. While the PWFA is already law, the regulations provide guidance and will be a reference for the EEOC, courts, lawyers, and (hopefully) you for issues arising under the PWFA.
What are the highlights?
Recall that the PWFA requires employers to provide reasonable accommodations to qualified employees or applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
We encourage you to review the many examples in the final rule and explore the EEOC’s summary of key provisions here. Here are some highlights:
- The regs show that the EEOC intends for the PWFA to have broad coverage, including covering conditions related to abortion.
- To be a qualified employee (or applicant):
- The employee must be the one experiencing the condition. Accommodations under the PWFA are not required “when an employee’s partner, spouse, or family member—and not the employee themselves—has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”
- The PWFA “does not create a right to reasonable accommodation based on an individual’s association with someone else” or to “provide accommodations for bonding or childcare.”
- The employee must be able to perform the essential functions of the job or if the employee cannot perform the essential functions, she must be able to do so “in the near future” and the inability to perform the essential functions can be reasonably accommodated.
- The employee must be the one experiencing the condition. Accommodations under the PWFA are not required “when an employee’s partner, spouse, or family member—and not the employee themselves—has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”
- Employers must engage in the interactive process and cannot require an employee to accept an accommodation without first going through the interactive process.
- Employers are only permitted to seek supporting documentation if it is reasonable under the circumstances.
- Employers may only deny accommodations if they would cause an undue hardship.
- There is no magic language for the employee’s request.
As we all navigate this new law, make sure your supervisors understand that this is a new requirement and they need to loop in HR before denying an accommodation. Also, you are likely to spend more quality time talking with your employment counsel to walk through these issues when they arise.