As we have previously covered in EmployNews, on June 27, 2023, the Pregnant Workers Fairness Act (PWFA) took effect, which requires most employers with 15 or more employees to offer reasonable workplace accommodations to workers who are pregnant, or have a condition related to pregnancy or childbirth, unless the accommodation would cause the business an undue hardship.

The U.S. Equal Employment Opportunity Commission (EEOC) was subsequently tasked with issuing regulations to implement the law.

Earlier this week, the EEOC unveiled those implementing regulations and accompanying interpretative guidance, which provide clarity to employers and workers about who is protected, the types of limitations and medical conditions covered, how individuals can request reasonable accommodations, and numerous concrete examples.

Specifically, the regulations address:

Controversial Protections to Employees Seeking Abortion-Related Accommodations

The regulations include lactation, miscarriage, stillbirth, and "having or choosing not to have an abortion" in the definition of "pregnancy-related medical conditions," thereby requiring employers to provide accommodations to employees with these conditions or who have abortions. The EEOC provided that such accommodations may include time off to attend a medical appointment, time off for recovery as well as water, food, or restroom breaks, and remote work and temporary reassignments.

The EEOC clarified, however, that the PWFA does not require an employer-sponsored health plan to pay for or cover an abortion, nor does it require reasonable accommodations that would cause an employer to pay for travel-related expenses to obtain an abortion. Further, EEOC Chair Charlotte Burrows has assured employers that they would have the opportunity to raise objections to the provision of accommodations related to abortions, particularly on religious grounds, but that these scenarios would depend on fact-specific circumstances.

The inclusion of abortion in the final regulation faced significant pushback — the agency received more than 100,000 comments in response to the proposed rule, with approximately 54,000 asking the EEOC to exclude abortion from its definition of related medical conditions.

Eligibility Time Limits for Employees That Temporarily Cannot Perform Essential Job Functions

Under the PWFA, qualified employees must be able to perform the essential functions of a job with or without a reasonable accommodation. However, even if the employee temporarily cannot perform the job’s essential functions with or without a reasonable accommodation, an employee can be qualified even if they cannot do the essential functions of their job as long as the inability is "temporary" and the employee could perform the functions "in the near future." They can also be qualified if the inability to perform the essential functions can be reasonably accommodated. This accommodation obligation goes well beyond what is required under the Americans with Disabilities Act.

Through the implementing regulations, the EEOC clarified that "in the near future" means, generally, "40 weeks from the start of the temporary suspension of an essential function(s)," however, that "[t]he actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires, and the covered entity always has available the defense that it would create an undue hardship."

Method By Which Employees Communicate Accommodation Requests

The regulations adopted a pro-employee interpretation of how employees may communicate with employers regarding accommodation requests, providing that:

• "Employees should not be made to wait for a reasonable accommodation, especially one that is simple and imposes negligible cost or is temporary, because they spoke to the ‘wrong’ supervisor."
   
• "The individuals to whom an employee can communicate to seek accommodation include persons with supervisory authority for or who regularly direct the employee’s work (or the equivalent for the applicant) and human resources personnel."

Thus, employers should be aware that the EEOC expects that many PWFA accommodations be granted after simple exchanges of information between employees or applicants and employers, such as brief conversations or emails, with anyone with supervisory authority or in human resources.

Requests for Medical Certification

Like the Family and Medical Leave Act, the PWFA does not allow employers to require employees to provide medical proof of pregnancy. The regulations also limit information that can be requested to certify the presence of a pregnancy complication or medical need for accommodation:

• Employers may only ask for information that is limited and directly related to the claimed condition. The rules prevent use of FMLA or ADA medical certification forms for this purpose.
   
• If the employee provides such certification from their provider, the employer cannot require a second opinion from a medical provider of its choice.

The final regulations expand on the PWFA, and employers should be particularly sensitive to their duties under the law.

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