EEOC releases Pregnant Workers Fairness Act final rule

Posted April 16, 2024

The pregnant pause for the Pregnant Workers Fairness Act (PWFA) final rule is over. On April 16, the Equal Employment Opportunity Commission published the final rule in the Federal Register. It becomes effective 60 days after April 19.

Pregnancy-related conditions must be accommodated

The regulations (and law) generally apply to employers with 15 or more employees.

Employers must provide a reasonable accommodation to employees or applicants who have a known limitation — a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The physical or mental condition that is the limitation is:

• An impediment or problem that may be modest, minor and/or episodic;
• A need or problem related to maintaining the employee's health or the health of the pregnancy; or
• Seeking health care related to pregnancy, childbirth, or a related medical condition itself.

PWFA limitation differs from ADA disability

With the PWFA, employees and applicants don’t have to have a disability as defined by the federal Americans with Disabilities Act (ADA).

In fact, pregnancy, childbirth, or related medical conditions do not need to be the sole, the original, or a substantial cause of the physical or mental condition at issue under the PWFA.

Unlike the ADA, employees and applicants are qualified (and protected) under the PWFA even if they cannot perform one or more essential functions of the job if the inability to perform the essential function(s) is:

• Temporary,
• The employee could perform the essential function(s) in the near future, and
• The inability to perform the essential function(s) can be reasonably accommodated.

This is different that the ADA, which says employee(s) must be able to perform a job’s essential functions with or without a reasonable accommodation. Thus, the PWFA is a broader, more inclusion employment law that will likely impact more employers.

40 weeks of pregnancy means 40 weeks of accommodation

In the final rule, as in the proposed rule, if an employee is pregnant, it is assumed that the employee could perform the essential function(s) “in the near future.” The reason is because they could perform the essential functions within generally 40 weeks of suspending of the essential functions. This equates to the timeframe for a standard pregnancy of 40 weeks (roughly 9 months).

The final rule’s definition does not mean that the essential function(s) of a pregnant employee must always be suspended for 40 weeks, or that if a pregnant employee seeks the temporary suspension of an essential function(s) for 40 weeks it must be automatically granted.

One of the ways the final rule differs from the proposed rules is that whether the employee could perform the essential function(s) in the near future in situations other than when the employee is pregnant is determined on a case-by-case basis.

J. J. Keller & Associate, Inc. subject matter experts are available to answer questions from subscribers.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.