The EEOC Expands Employers’ Requirements to Accommodate Pregnancy and Childbirth Under the Pregnant Workers Fairness Act

By John F. Lomax, Anne E. Dwyer, and Brenna Fisher

On April 19, 2024, the Equal Opportunity Employment Commission (EEOC) issued a final rule (the Rule) to implement the Pregnant Workers Fairness Act (PWFA). Although the PWFA went into effect last year in June 2023, the EEOC’s final rule became effective on June 18, 2024. The PWFA requires employers to make reasonable accommodations for an employee who requests accommodations based on a physical or mental condition arising from pregnancy, childbirth, or other related medical conditions. Importantly, the PWFA only affects requests for accommodations and does not govern discriminatory behavior or other adverse employment actions, such as termination. 

The PWFA applies to private and public employers with fifteen or more employees. Its reach is extensive and expands employers’ existing obligations to accommodate pregnancy-related conditions beyond what is already required under the Americans with Disabilities Act (ADA). 

Under the PWFA, employers must make reasonable accommodations for the known limitations of an employee or job applicant. A reasonable accommodation is a change in the work environment or the way things are typically done at work. This can include: 

• Longer, more flexible breaks to eat, drink water, or use the restroom; 
• Giving the employee the option to work remotely; 
• Changing a uniform or dress code; 
• Providing a reserved parking space; or 
• Allowing light duty to avoid strenuous manual labor.

To qualify under the PWFA, an employee must be qualified to perform the essential functions, i.e., fundamental duties, of the job with or without a reasonable accommodation. An employee may still qualify under the PWFA even if they are unable to perform essential functions of their job as long as (1) the inability is temporary, (2) the employee could perform the essential functions “in the near future,” and (3) the inability to perform the essential functions can be reasonably accommodated. The EEOC’s rule presumes that “near future” may include the entire length of a pregnancy. Simply put, the EEOC’s regulations arguably require employers to temporarily suspend one or more of the job’s essential functions to accommodate a pregnancy or childbirth-related limitation. 

When an employer considers whether to temporarily suspend the employee’s essential functions of the job, the employer should consider the length of time that the employee will be unable to perform the functions, whether the employee can accomplish other work during that time period, whether other employees or third-parties may be able to temporarily perform those essential functions, and whether the essential functions can be postponed or remain unperformed for any length of time. 

The EEOC’s final rule expansively defines “related medical conditions” of pregnancy and childbirth. Such medical conditions can include menstruation, nausea, breastfeeding, carpal tunnel syndrome, ectopic pregnancy, stillbirth, abortion, and endometriosis. The EEOC’s list is not all inclusive and makes clear that the PWFA covers a broad range of conditions, including those that are “episodic” or “minor.” A limitation can include (1) additional time for attending to related medical conditions such as attending increased healthcare appointments or needing time to breastfeed or (2) a physical condition such as morning sickness or migraines. The EEOC acknowledges in the Rule that an employee’s need for accommodations may change as the employee goes through pregnancy and childbirth. 

Importantly, the limitation must be known to the employer. Employers are not required to make reasonable accommodations for limitations or conditions relating to pregnancy and childbirth if the employer is unaware of the conditions or limitations. 

Despite the requirement that the limitation be “known,” the PWFA loosens requirements for medical documentation, as compared to its ADA counterpart. Under the PWFA, employers may request supporting medical documentation only when it is “reasonable under the circumstances.” For example, supporting medical documentation will not be necessary if an employee is visibly pregnant or the pregnancy or childbirth is otherwise “obvious.” Even if supporting documentation is reasonable under the circumstances, the employer may request only the minimum necessary documentation to understand the employee’s limitation, confirm the condition is related to pregnancy or childbirth, and describe the adjustment needed at work. The documentation may come from any healthcare provider; it is not required that the employee bring documentation from the employee’s treating physician. 

Once an employer knows of an employee’s limitation, the employer should engage in the “interactive process.” The interactive process is simply the process by which the employer and employee should communicate about the limitation and the accommodations that would allow the employee to continue in their position. The interactive process should culminate in approval or denial of the employee’s requested accommodation.

Employers may deny a reasonable accommodation if it would cause undue hardship. Employers must not, however, deny an applicant a job position based on the applicant’s need for a reasonable accommodation. Additionally, employers may not require an employee to take leave based on pregnancy or childbirth when a reasonable accommodation would allow the employee to continue working and may not unreasonably delay providing a requested accommodation.  

For purposes of the PWFA, undue hardship means that the requested accommodation would cause the employer significant difficulty or expense. Deciding whether an accommodation will cause undue hardship requires a case-by-case assessment. In making that assessment, employers may consider:

• The nature and net cost of the accommodation;
• The financial resources of the facility, the number of employees at the facility, and the accommodation’s effect on the expenses and resources; 
• The employer’s operations and functions;
• The impact of the accommodation on the operation of the employer’s facility; and
• The impact of the accommodation on other employees’ abilities to perform their duties.

The EEOC also set forth a list of accommodations that will not be considered an undue hardship on an employer in “virtually in all cases.” Those accommodations include:

• Allowing an employee to carry or keep water nearby and drink as needed;
• Allowing an employee to take additional restroom breaks as needed; 
• Allowing an employee to sit or stand as needed throughout the workday; and
• Allowing an employee to take breaks to eat and drink as needed.

Finally, an employer must not punish or retaliate against an employee for requesting or using a reasonable accommodation, attempting to exercise their rights under the PWFA, or reporting unlawful action under the PWFA.

Though the EEOC only recently announced the final rule, it has already been the subject of litigation. Seventeen states joined in a lawsuit challenging the Rule in the Eastern District of Arkansas, asserting that the text of the regulation impermissibly includes abortion as a related medical condition. While the states did not challenge the PWFA itself, they challenged the Rule’s text requiring accommodations for limitations related to abortions. The states requested a nationwide injunction of the Rule in its entirety. The court declined to issue the requested injunction, stating that the case “presents a narrow disagreement over a few words, a disagreement that seems unlikely to flower into few, if any, real world disputes,” and dismissed the case.

Several other challenges to the Rule are still pending nationwide. The US Conference of Catholic Bishops and the states of Louisiana and Mississippi have filed lawsuits in the Western District of Louisiana, challenging the abortion language in the Rule. A court in the Northern District of Texas blocked the EEOC from enforcing the PWFA against the state of Texas and its agencies, ruling that the Act’s passage by proxy vote violated the Constitution’s quorum clause. This ruling was appealed by the EEOC, and the appeal is currently pending before the Fifth Circuit Court of Appeals. 

Employers are encouraged to become familiar with the PWFA and its regulations and may want to consider training supervisors and managers on the law. For example, supervisors should know that employees do not need to reference the PWFA or use the terms “reasonable accommodation” or “interactive process” to invoke their rights.