New Pregnant Workers Fairness Act regulations will take effect June 18

Published: April 15, 2024 | by Emily Scace, Senior Legal Editor at Brightmine

The Equal Employment Opportunity Commission (EEOC) has issued a final rule setting out regulations to implement the Pregnant Workers Fairness Act (PWFA), a landmark federal law that expanded employees’ rights to obtain reasonable accommodations at work for pregnancy, childbirth and related medical conditions.

The PWFA requires covered employers to reasonably accommodate employees’ known limitations that result from pregnancy, childbirth and related medical conditions, unless an accommodation would impose an undue hardship on the employer. The law, which directed the EEOC to issue implementing regulations by December 29, 2023, took effect in June 2023. Proposed regulations were issued in August 2023, and the final regulations are projected to take effect June 18, 2024 – 60 days after their upcoming publication in the Federal Register.

Although the EEOC responded to the many public comments it received on the August 2023 proposed rule, the agency made only modest changes from the proposal to the final regulation. They include:

• Revising the definition of pregnancy, childbirth, or related medical conditions to clarify that those terms refer only to the pregnancy, childbirth or related medical condition of the specific employee in question and do not include a condition experienced by an employee’s partner, spouse or family member.
• Removing most instances of the words applicant and former employee from the rule and its accompanying interpretive guidance to improve readability, while specifying that the PWFA’s definition of employee includes applicants and former employees when relevant.
• Adding change of work site to the list of examples of reasonable accommodations.
• Providing additional details regarding accommodations for lactation and clarifying that both the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the PWFA may govern these accommodations, depending on the employer.
• Adding a reference to nursing during work hours as a possible reasonable accommodation for situations in which an employee ordinarily works in close proximity to their child.
• Clarifying when an employee may be asked for supporting documentation to confirm the need for an accommodation and what constitutes reasonable documentation.

Consistent with the proposed rule, the final rule defines pregnancy, childbirth or related medical condition broadly, encompassing current pregnancy, past pregnancy, potential or intended pregnancy (including infertility, fertility treatment and contraception), labor, childbirth, termination of pregnancy (including miscarriage, stillbirth and abortion), lactation and many associated health conditions.

While the EEOC received many comments arguing against the inclusion of abortion in the PWFA’s protections, the final rule retains this language. The regulations do not “require abortions or affect the availability of abortion,” the EEOC emphasized in its response to these concerns, but simply “ensure[] that employees who choose to have (or not to have) an abortion are able to continue participating in the workforce, by seeking reasonable accommodations from covered employers.”

The final rule also includes guidance, including numerous examples, regarding:

• The types of accommodations to which employees may be entitled.
• The conditions that may trigger PWFA protections.
• When an accommodation would impose an undue hardship on an employer.
• Communication between employers and employees to resolve requests for reasonable accommodation in a timely manner.