On April 15, 2024, the EEOC issued its final rule implementing the Pregnant Workers Fairness Act (“PWFA”). The finalized regulation clarifies and expands upon the original regulation that went into effect June 2023. The PWFA continues to require employers with 15 or more employees to provide "reasonable accommodations" for employees and applicants facing “known limitations” attributable to pregnancy, childbirth, or related medical conditions, unless such accommodations pose undue hardship. While the final ruling contains several significant requirements and clarifications, one of the most significant is that employers will now be required to accommodate employees and applicants needing time off for an abortion procedure or recovery. The most important developments that employers should be aware of are outlined below.

Expansive Coverage Includes Accommodations Related to Abortion Care

The final rule contains an expansive definition of "pregnancy, childbirth, and related medical conditions.” While conditions commonly associated with pregnancy and childbirth continue to be covered, the EEOC has clarified that conditions related to current, past, and potential pregnancy are also covered; this includes abortion care. Other reproductive-related conditions that may require accommodation under the PWFA include:

• miscarriage, stillbirth, and fertility treatment;
• lactation and other issues associated with lactation;
• use of birth control and other contraceptives;
• menstrual cycles and hormone levels;
• issues related to pregnancy such as headaches, nausea, high blood pressure, and carpal tunnel syndrome, and;
• mental health issues related to pregnancy such as postpartum depression, anxiety, and psychosis.

Although the new rule expressly requires employers to provide accommodations for abortion related care, employers are not required (or forbidden) to pay for health insurance benefits for an abortion. Currently, the EEOC anticipates that the primary accommodation requests will involve time off for attending appointments related to an abortion or for recovery.

The EEOC will consider exemptions for religious-based employers on a case-by-case basis.

Broad definition of “known limitations”

The PWFA defines “known limitations” very broadly. A “known limitation” refers to any physical or mental condition associated with pregnancy, childbirth, or related medical issues that the employee or the employee’s representative has informed the employer about. This includes common or minor ailments related to pregnancy. The PWFA does not require a specific severity level for coverage, meaning that a limitation under the PWFA will be much broader than under the ADA. A limitation could be something as simple as a small or occasional problem, such as needing frequent restroom breaks. It also includes any needs or concerns related to the employee's health during any type of pregnancy, both complicated and uncomplicated.

Expansion of covered individuals

Under the PWFA, both current employees and applicants will qualify for coverage. The new regulation is more expansive than the ADA and states that individuals are qualified if:

1. their inability to perform a crucial task is temporary,
2. they could reasonably perform the essential task in the near future, and
3. the inability to perform the essential task is due to a medical condition or disability, but they can still carry out the job's fundamental duties with or without accommodation.

This means that individuals are qualified if their inability to perform the essential duties is temporary, and these duties can be carried out "in the near future." "Temporary" is a finite duration, not permanent, but may extend beyond what is typically considered "in the near future." Generally, "in the near future" means approximately 40 weeks, but this timeframe is not automatically applied.

It may be challenging for employers to handle requests because of these vague terms, and therefore, employers are encouraged to seek legal guidance as prudent.

Examples of Reasonable Accommodations

If a qualified employee is eligible for an accommodation, the employer must excuse essential job functions for generally up to 40 weeks for each accommodation requested (unless such accommodation would impose an undue hardship on the employer). Examples of reasonable accommodations for workers, include:

• water, food, or restroom breaks;
• telework or remote work;
• temporary reassignments or schedule changes;
• providing a reserved parking space;
• ensuring the accessibility of current facilities or adjusting the workplace environment; and
• time off for healthcare appointments or to recover from childbirth or miscarriage.

The EEOC clarified that an employer is not required to seek supporting documentation when an employee requests a reasonable accommodation but may do so only when it is reasonable under the circumstances.

Denying Reasonable Accommodations Due to Undue Hardship

An employer may only deny an accommodation if it poses an “undue hardship” on business operations. Under the final rule, the PWFA will use two sets of non-dispositive factors to determine if the requested accommodation poses an undue hardship and can be denied. The first set relates to all forms of accommodations. The second set relates specifically to accommodations suspending essential functions.

Factors to consider if an accommodation would impose an undue hardship:

• the nature and net cost of the requested accommodation on the entity;
• the financial impact of the accommodation on the entity;
• the overall financial resources of the covered entity including the number of employees, and the number, type, and location of its facilities;
• the type of operation or operations of the covered entity including its financial resources, number of employees, office locations, and type of facility; and
• the impact of the requested accommodation on the operation of the facility including the impact of other employees’ ability to perform their duties and the impact on the facility’s ability to conduct business.

Factors to consider when determining if an accommodation that would temporarily suspend an essential function of the job will cause an undue hardship:

• the length of time the employee or applicant will be unable to perform the essential function;
• whether there is work for the employee or applicant to accomplish;
• the nature of the essential function, including its frequency;
• whether the employer has provided other employees or applicants in similar positions who are unable to perform essential functions with temporary suspension of those functions and other duties;
• whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function in question, if needed; and
• whether the essential function can be postponed or remain unperformed for any length of time and, if so, for how long.

These rules will go into effect June 18, 2024. Because of some of the expanded requirements, we expect certain parts of it to be challenged in court. We will continue to monitor the regulation and keep you updated on all significant changes.