EEOC Issues Final Rule on Pregnant Workers Fairness Act: Among Other Things, It Extends Protections to Abortion as a “Related Medical Condition”
Signed into law in late 2022, the Pregnant Workers Fairness Act (Pub. L. 117-328) (PWFA) affords reasonable workplace accommodations to employees affected by pregnancy, childbirth, or related medical conditions.
On June 27, 2023, the Equal Employment Opportunity Commission (EEOC) began accepting Charges under the PWFA, and in August 2023, issued a Notice of Proposed Rulemaking (NPRM) providing guidance on the implementation of the PWFA.
On April 15, 2024, the EEOC issued its final regulation, which evidences a broad construction of the protections thereunder. The final regulation will take effect on June 18, 2024. The most controversial provision of the EEOC’s final regulation is the protections afforded to individuals who require abortion-related job accommodations.
Abortion as a “Related Medical Condition”
As we discussed in our prior advisory, the NPRM defined “pregnancy, childbirth, and related medical condition,” in part as “having or choosing not to have an abortion.” The EEOC received approximately 94,000 comments just about the inclusion of abortion as a related medical condition in the NPRM. Of those, approximately 54,000 requested the EEOC revise its definition to exclude abortion, while the balance supported its inclusion.
In explaining its decision to include abortion in the final regulation, the EEOC acknowledged that the comments it received requesting abortion be excluded were likely based upon “deeply held convictions [that] are often part of an individual’s religious beliefs.” Nonetheless, the EEOC justified the inclusion of abortion based on the following:
- First, the PWFA is an employment anti-discrimination law. It does not speak to whether abortion services should or should not be available and does not require an individual to have or not have an abortion. Similarly, it does not require or forbid an employer from paying travel or health expenses associated with any medical procedures – including those related to an abortion. Practically, the PWFA merely protects an individual’s right to accommodation in the event of abortion-related service – which will most likely be leave to attend appointments or for recovery.
- Second, the inclusion of the abortion in the final regulation is for “the limited purpose of determining whether an employee qualifies for a workplace accommodation under the PWFA.” Because, as evidenced by the comments, the moral or religious permissibility of abortion-related services is rarely rigid or without exception – even when based upon sincerely held religious beliefs.
- Third, despite the obvious controversy evidenced by the number of comments on this subject, history indicates that very few employers have actually faced a situation where the employee requests leave for abortion-related services and the employer declines such request on religious or moral grounds. In fact, since 1978, Title VII has required employers who provide sick leave to do so in a non-discriminatory manner to those affected by pregnancy, childbirth, or related medical conditions, including to have an abortion.
The final regulation does, however, acknowledge that employers remain able to object to any request for accommodation – abortion-related or otherwise – based on existing defenses including religious beliefs and/or undue hardship.
Challenge to the Final Regulations
On April 25, 2024, a group of 17 states filed a lawsuit in the United States District Court for the Eastern District of Arkansas, challenging the EEOC’s final regulation on the PWFA for including of abortion as a “related medical condition.” The Complaint asserts five separate causes of action and asks the Court to enjoin the implementation of the final regulation pending the Court’s final ruling. Specifically, the plaintiff states allege that the EEOC exceeded its statutory authority construing the PWFA to include abortion. The EEOC has responded that “the PWFA’s requirements [as to abortion] are narrow and will likely concern only a request by a qualified employee for leave from work.”
Critical Parts of the Final Rule
Although the inclusion of abortion as a “related medical condition” has received significant coverage, there are other important provisions about which employers should be aware.
Covered Conditions: The conditions that are covered under the PWFA - “pregnancy, childbirth, or related medical conditions” – are given expansive definitions: “Pregnancy” and “childbirth” refer to the pregnancy or childbirth of the specific employee in question and include, but are not limited to, current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including vaginal and cesarean delivery). “Related medical conditions” are medical conditions relating to the pregnancy or childbirth of the specific employee in question. The following are examples of conditions that are, or may be, “related medical conditions”: termination of pregnancy, including via miscarriage, stillbirth, or abortion (as discussed above); ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal (during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstruation; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections. In addition, “related medical conditions” may include those physical and mental conditions that originate during pregnancy, as well as pre-existing conditions that are exacerbated by pregnancy or childbirth. And, even “modest, minor, and/or episodic” conditions may need to be accommodated. That said, employers do not need to provide accommodation to an employee when an employee’s partner, spouse, or family member (and not the employee) has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions.
Employs Language Similar to the ADA but Imposes Different Requirements on Employers: The rule confirms that the PWFA is distinct from the ADA in several important respects, including that the PWFA is intended to cover conditions that don’t rise to the level of disability under the Americans with Disabilities Act (ADA); and an employee may be “qualified” even if they cannot perform the essential function of the position, provided that certain conditions are met. Specifically, an employee may be “qualified” even if they cannot perform one or more essential functions of a position with or without reasonable accommodations, provided that three conditions are met: (1) the inability to perform an essential function(s) is for a temporary period; (2) the essential function(s) could be performed in the near future; and (3) the inability to perform the essential function(s) can be reasonably accommodated. For a current pregnancy, “in the near future” is generally 40 weeks from the state of the temporary suspension of an essential function. For conditions other than a current pregnancy, the regulations do not define a specific time for “in the near future.” Rather, “in the near future” will be determined on a case-by-case basis. The EEOC provides two examples of situations where the employee may be qualified upon a temporary suspension of an essential function: (1) a pregnant construction worker is told by their health care provider to avoid lifting more than 20 pounds during the second through ninth months of pregnancy, an essential function of the worker's job requires lifting more than 20 pounds, and there is not a reasonable accommodation that will allow the employee to perform that function without lifting more than 20 pounds; and (2) a pregnant police officer is unable because of their pregnancy to perform patrol duties during the third through ninth months of pregnancy, patrol duties are an essential function of the job, and there is not a reasonable accommodation that will allow the employee to perform the patrol duties. An employer may, however, refuse to provide the accommodation if doing so would impose an undue hardship.
Examples of Reasonable Accommodations: The EEOC provides examples of reasonable accommodations that would address known limitations related to pregnancy, childbirth, or related medical conditions, including: making existing facilities used by employees readily accessible to an usable by employees with known limitations under the PWFA; job restructuring; part-time or modified work schedules; breaks for use of the restroom, drinking, eating, and/or resting; modifying equipment, uniforms, or devices (including devices that assist with lifting or carrying for jobs that involve lifting or carrying); providing unpaid leave; telework, remote work, or change of work site; temporarily suspending one or more essential functions; and adjusting or modifying examinations or policies. The EEOC provides further detail regarding reasonable accommodations for lactation, including that a lactation accommodation can include permitting the employee to nurse during work hours where the child is in “close proximity” to the employee.
“Predictable Assessments” that Are De Facto Reasonable: Although determining whether and what accommodation is appropriate requires an individualized assessment, the EEOC presumes that these specific modifications (which it called “predictable assessments”) will not impose an undue hardship “in virtually all cases”: allowing an employee to carry or keep water and drink, as needed; allowing an employee to take additional restroom breaks, as needed; allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and allowing an employee to take breaks to eat and drink, as needed.
Medical Documentation and Inquiries: An employer may obtain medical documentation only if it is reasonable under the circumstances to determine if the employee has a qualifying condition and needs an adjustment or change at work due to the limitation. Reasonable documentation means the minimum that is sufficient to (1) confirm the physical or mental condition underlying the limitation; (2) confirm that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3) describe the adjustment or change at work that is needed due to the limitation. Employers may not require that supporting documentation be submitted on a specific form. Requests for more information than what is permitted may constitute retaliation. Furthermore, employers may not seek supporting documentation in five instances: (1) when the limitation and the adjustment or change at work needed due to the limitation are obvious and the employee provides self-confirmation; (2) when the employer already has sufficient information to determine whether the employee has a physical or mental condition related to, affected by, or arising out of a limitation and needs an adjustment or change at work due to the limitation; (3) when the employee is pregnant and seeks one of the four “predictable assessment” accommodations; (4) when the reasonable accommodation is related to a time and/or place to pump at work, other modifications related to pumping at work, or a time to nurse during working hours and the employee provides self-confirmation; and (5) when the reasonable accommodation is available to employees without known limitations under the PWFA pursuant to a covered entity’s policies or practices without submitting supporting documentation. Finally, an employer may not require that an employee submit to an examination by a healthcare provider of its choosing.
What Should Employers Know?
Employers should be familiar with the PWFA and its final regulation because it, among other things, impacts the accommodations that employers must provide to covered employees. Employers must also be aware of other state or local laws that provide greater or equal protections for protected individuals. Employers should review their current practices and policies to ensure that they comply with applicable law and conduct management training to ensure that their employees are informed of applicable law. Buchanan’s labor and employment attorneys are closely monitoring updates on the challenges to the final regulation and are available to answer any questions regarding your company’s practices and policies.