The EEOC’s Final Regulation Clarifying and Interpreting the Pregnant Workers Fairness Act

October 8, 2024 Katya Lancero Norris Employment Law

The EEOC’s Final Regulation Clarifying and Interpreting the Pregnant Workers Fairness Act July 22, 2024 By: Katya M. Lancero

In March 2023, we published an article about the Pregnant Workers Fairness Act[1] (“PWFA”), which took effect on June 27, 2023.  On April 15, 2024, the United States Equal Employment Opportunity Commission (“EEOC”) issued its final regulation and interpretive guidance[2], which took effect on June 18, 2024, and which provided clarifying information and guidance on how to interpret the PWFA.  This article explains the final regulation and highlights legal challenges to the regulation.

Recap of the PWFA

As a recap, the PWFA requires covered public and private employers with at least 15 employees to provide reasonable accommodations (i.e., changes at work) to a qualified employee’s or applicant’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would impose an undue hardship on the operations of the employer.  The PWFA is similar to the Americans with Disabilities Act and the Arizona Civil Rights Act (“ACRA”) which require covered employers to consider granting reasonable accommodations to qualified individuals with disabilities.  Notably, the PWFA prohibits an employer from requiring an employee to go on a leave of absence, whether paid or unpaid, if another reasonable accommodation can be provided.  In addition, unlike under the ADA and ACRA, the PWFA protects employees even if they are temporarily unable to perform an essential function of the job.

The EEOC’s Final Regulation

The EEOC’s final regulation defines “pregnancy, childbirth or related medical conditions” expansively, to include not only current, past, and potential pregnancy, but also termination of pregnancy, including by way of abortion, which has led to legal challenges.[3]  The definition also includes termination of pregnancy by miscarriage and stillbirth, as well as infertility and fertility treatment, the use of contraception, pregnancy-related sicknesses such as morning sickness and preeclampsia, labor and childbirth, lactation, menstruation, chronic migraines, dehydration, high blood pressure, depression, postpartum depression, and frequent urination, among other examples. 

In addition, “limitation” is defined expansively in the final regulation to include impediments or problems that are modest, minor, or episodic.  It also includes actions that need to be taken to maintain the worker’s health or the health of their pregnancy, including merely seeking healthcare for their pregnancy.  Thus, workers with healthy and normal pregnancies are entitled to accommodations under the PWFA based on the final regulation.

If an employer has reasonable concerns about whether a limitation is related to pregnancy, childbirth, or related medical conditions or whether the worker needs an accommodation, the employer may request reasonable supporting documentation from a healthcare provider.  The final regulation sets forth examples of when it would not be reasonable to request supporting documentation — for example, if the limitation and need for an accommodation are obvious and the employee provides self-confirmation (meaning a simple statement in which the employee confirms the limitation and need for an accommodation) or if the employer already has sufficient information to make a determination.  The documentation requested must be reasonable as well, which is defined as the minimum needed to confirm the limitation, connection to pregnancy, childbirth, or a related medical condition, and/or accommodation.

Employers are required to engage in the “interactive process” as they are under the ADA and ACRA to evaluate reasonable accommodations.  Furthermore, employers are in violation of the PWFA if they unnecessarily delay in providing an accommodation.  If an employee rejects a reasonable accommodation and is therefore unable to perform an essential function of the job, the employee is not protected under the Act.  Furthermore, the final regulation provides examples of potential accommodations such as:

  • Allowing sitting or standing and providing a means to do so;
  • Frequent breaks
  • Schedule changes;
  • Providing a reserved parking space;
  • Telework;
  • Leave;
  • Obtaining or modifying devices that assist with lifting; and
  • Temporarily suspending one or more essential functions of the job.

Undue Hardship

Employers are not required to provide accommodations under the PWFA if they would impose an undue hardship on the company.  In determining whether an accommodation would impose an undue hardship, the final regulation sets forth various factors employers can take into consideration, including:

  • The nature and net cost of the requested accommodation;
  • Overall financial resources of the facility and the number of people employed at the facility;
  • Overall financial resources of the employer;
  • Type of operation of the employer;
  • The impact of the accommodation on the operation, including on the ability of other employees to perform their duties.

When an employee needs to temporarily suspend an essential function of her job as an accommodation under the PWFA, the final regulation sets forth factors that may be taken into consideration in evaluating whether such an accommodation would impose an undue hardship, such as:

  • The length of time the employee is unable to perform the essential function;
  • Whether there is work for the employee to accomplish;
  • The nature of the essential function, including its frequency;
  • Whether the employer has provided other employees in similar positions temporary suspensions of an essential function;
  • Whether there are other employees who can perform the essential functions that need to be temporarily suspended;
  • Whether the essential function can be postponed or remain unperformed for a length of time, if so, for how long.

Legal Challenges and the High Court’s Decision to Strike Down the Chevron Doctrine

In addition to the legal challenges noted above, on February 27, 2024, a federal district court in Texas ruled the passage of the PWFA violated the United States Constitution, but the ruling is limited to the State of Texas and its agencies.[4]  

And importantly, on June 28, 2024, the Supreme Court of the United States (“SCOTUS”) overturned the Chevron doctrine of judicial deference to a federal agency’s interpretation of ambiguous laws, giving courts greater discretion in accepting or rejecting an agency’s interpretation of a law.  Thus, the EEOC’s (a federal agency) final regulation interpreting the PWFA may come under greater scrutiny in light of the SCOTUS’ ruling on the Chevron doctrine. 

Recommendations for Employers

Despite the legal challenges in other jurisdictions, the final regulation is in effect for covered employers operating in Arizona.  Unless and until the PWFA or its final regulation are no longer applicable in Arizona, employers in Arizona should abide by the interpretations of the EEOC in its final regulation of the PWFA, train its Human Resources to understand and implement the Act, and update its employer policies.

Please call or email Katya M. Lancero at 480-425-2621 or katya.lancero@sackstierney.com or Shar Bahmani at 480-425-2611 or shar.bahmani@sackstierney.com of Sacks Tierney P.A. if you would like assistance complying with the Pregnant Workers Fairness Act or if you feel your rights have been violated as an employee or applicant under the PWFA.

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[1] 42 U.S.C. §§ 2000gg et seq.

[2] 29 C.F.R. §§ 1636.1 et seq.  The interpretive guidance contains examples to illustrate situations under the PWFA.

[3] Legal challenges have been made to the requirement in the final regulation that employers provide accommodations to workers for abortion-related limitations.  While a federal court in Arkansas denied a request by seventeen states for a preliminary injunction against this aspect of the final regulation in June 2024, a federal court in Louisiana, days later, issued a preliminary injunction blocking enforcement of this portion of the final regulation requiring abortion-related accommodations in Louisiana and Mississippi.

[4] Texas v. Garland, No. 5:23-CV-034-H, 2024 WL 967838 (N.D. Tex. Feb. 27, 2024).

no longer applicable in Arizona, employers in Arizona should abide by the interpretations of the EEOC in its final regulation of the PWFA, train its Human Resources to understand and implement the Act, and update its employer policies.