Legislative lowdown: EEOC issues final rule for implementing the PWFA

The Pregnant Workers Fairness Act (PWFA), which requires most employers with 15 or more employees to provide “reasonable accommodations” to workers who are pregnant or dealing with related medical conditions, has now been in effect for nearly a year.

Now, the Equal Employment Opportunity Commission (EEOC) has outlined in detail exactly how employers should be complying with the law. In a final rule issued on April 15, the agency provided clarity on the types of medical conditions that may be covered under the law, as well as how workers can request reasonable accommodations.

For HR pros who don’t have time to read through the whole 408-page document right away, here are a few key takeaways.

Abortion is considered a covered condition. The EEOC took a broad view of accommodations that may be requested by employees due to “pregnancy, childbirth, or related medical conditions.” Related conditions may include breastfeeding, miscarriage, or preeclampsia, for example, as well as abortion.

The decision to include abortion in their definition, the EEOC argued, is consistent with the “courts’ longstanding interpretation of the same phrase in Title VII.”

While employers won’t be required to pay for this procedure or cover travel expenses for workers seeking abortions, workers are likely to request time off to attend or recover from the procedure, the EEOC said in its rule. Such a leave accommodation would not have to be paid, as is the case under the Americans with Disabilities Act (ADA).

Four accommodations should almost always be considered reasonable. While employers may argue that granting certain accommodations under the PWFA may pose an “undue hardship,” the EEOC laid out four job modifications that will be found to be reasonable “in virtually all cases.” These include:

1. “carrying or keeping water near and drinking, as needed;
2. allowing additional restroom breaks, as needed;
3. allowing sitting for those whose work requires standing and standing for those whose work requires sitting, as needed; and
4. allowing breaks to eat and drink, as needed.”

Essential job functions may be temporarily suspended. Under the PWFA, employees may be temporarily exempt from performing essential functions of their position so long as they can resume doing so “in the near future.” Though the EEOC originally said “the near future” would constitute about 40 weeks from when a worker stops an essential function of their job, the final rule indicates such a determination should instead be “made on a case-by-case basis.”

This provision of the PWFA rule differs from the ADA framework, which states only individuals who can perform the essential functions of their job—with or without an accommodation—are qualified to seek out reasonable accommodations, attorneys with law firm Gibson Dunn noted.

Employers are limited in seeking documentation. Employers may request documentation from workers seeking accommodations under the PWFA only when such requests are “reasonable under the circumstances” to determine if the employee has a certain condition tied to pregnancy, childbirth, or related medical conditions. 

In most cases, employees should be able to request accommodations through simple email exchanges or conversations with their employers, the rule states. The EEOC does identify some examples of cases in which it would be reasonable to request documentation, such as verifying with a worker’s obstetrician that their pregnancy-related back injury requires them to limit heavy lifting for three months.