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The HR Minute

May 14, 2024

EEOC Issues Final Rule Implementing the Pregnant Workers Fairness Act

By Mitch Boyarsky, Josh Myers

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued its Final Rule implementing the Pregnant Workers Fairness Act (PWFA). The Final Rule will go into effect on June 18, 2024, nearly a year after the EEOC issued its Notice of Proposed Rulemaking.

Signed into law by President Biden in 2022, the PWFA was passed to provide protections for employees experiencing pregnancy, childbirth, and other related medical conditions. Under the PWFA, employers must provide reasonable accommodations to an employee or applicant for employment for their known limitations related to pregnancy, childbirth, or other related medical conditions. However, the employer need not provide an accommodation if it would cause an undue hardship on the employer’s business. The Final Rule clarifies an employer’s obligations under the PWFA. 

The Final Rule provides that certain accommodations are per se reasonable, and employers should grant those accommodations in almost every circumstance. Those accommodations include additional restroom breaks, food and drink breaks, access to water and other drinks, and sitting and standing. The Final Rule also proposes other reasonable accommodations, which are not per se reasonable, and they include job restructuring, the modification of work schedules, paid leave, and job reassignments.

In addition to reasonable accommodations, the Final Rule addresses other aspects of the PWFA, including when certain medical conditions are covered and when an employer’s obligation to accommodate is triggered. For example, the Final Rule provides a non-exhaustive list of covered conditions, including pregnancy, lactation, use of birth control, miscarriage, stillbirth, and abortion, that can give rise to requests for reasonable accommodations. 

It also indicates that verbal conversations with direct superiors can trigger an employer’s statutory obligation to provide a reasonable accommodation. The request for an accommodation need not identify a medical condition or employ medical terms. The request itself can trigger the interactive process for an employer. If the interactive process is employed, the Final Rule makes clear that there are circumstances when an employer cannot request documentation from an employee, including, but not limited to, when the need for an accommodation is “obvious,” the request seeks one of the accommodations that are per se reasonable, and/or the employer already has “sufficient information” about the employee’s physical or medical condition.  

Although the Final Rule goes into effect on June 18, some parts of its implementation remain in flux. Last month, 17 states, including Tennessee, Arkansas, Alabama, Florida, Georgia, Idaho, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia, filed suit in the U.S. District Court for the Eastern District of Arkansas and are seeking to invalidate the Final Rule’s provisions on abortion. They have also requested a stay of the effective date of the Final Rule in its entirety. Accordingly, aspects of the Final Rule could be impacted by this ongoing litigation.         

For more information or specific advice on implementing the new requirements of the Final Rule or other relevant employment law updates, please contact the authors or the Nelson Mullins Employment and Labor Practice group.