On April 19, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a final rule to implement the Pregnant Workers Fairness Act (“PWFA” or the “Rule”). The Rule was published and becomes effective on June 18, 2024.

The PWFA requires covered employers to provide reasonable accommodations to employees with known limitations, including physical or mental conditions, “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” unless doing so poses an undue hardship. The PWFA also prohibits covered employers from discriminating against, retaliating against, and coercing employees with known limitations.

The EEOC provides guidance to employers about their obligations under the Rule, including a non-exhaustive list of examples of qualifying conditions. See § 1636.3(b). As explained above, the limitation must be related to, affected by, or arising out of pregnancy or childbirth.

“Pregnancy” and “childbirth” includes current or past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatments, and the use of contraception); and labor and childbirth (including vaginal delivery and cesarean section). The PWFA provides that medical conditions related to pregnancy include but are not limited to:

  • Lactation (including breastfeeding and pumping);
  • Miscarriage;
  • Stillbirth;
  • Having or choosing not to have an abortion;
  • Preeclampsia;
  • Gestational diabetes; and
  • HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome.

Related medical conditions may also include pre-existing conditions that were exacerbated by pregnancy or childbirth, such as diabetes or high blood pressure.

The Rule further provides specific examples of reasonable accommodations that are available to employees under the PWFA. These include but are not limited to frequent breaks, schedule changes, telework, and temporary suspension of one or more essential job functions.

The PWFA takes some guidance from the Americans with Disabilities Act (“ADA”). For example, like the ADA, the Rule provides for an interactive process between the employer and employee when necessary. The Rule also takes its definition for an employer’s “undue hardship” from the ADA, as well as the factors to be considered when determining if undue hardship exists. However, under the Rule, a known limitation does not have to qualify as a “disability” under the ADA.

Although the PWFA initially received bipartisan support, the EEOC’s inclusion of abortion within the definition of “pregnancy, childbirth, or related medical condition” has caused friction. Indeed, on April 25, 2024, 17 states led by Tennessee, including neighboring states Oklahoma and Arkansas, filed a complaint for injunctive and declaratory relief against the EEOC in the Eastern District of Arkansas related to the PWFA and the “abortion-accommodation mandate.” Tennessee v. E.E.O.C., Civ. A. No. 2:24-CV-84-DPM (E.D. Ark. 2024). Plaintiffs in that action assert that the Rule violates the Administrative Procedure Act and the U.S. Constitution because the Rule requires employers to accommodate workers’ abortions, even those that are illegal under state law.

Given the pending litigation, the future of the EEOC’s Rule and its interpretative guidance is uncertain. Of course, employers should consult with legal counsel and follow the status of the litigation challenging the Rule to determine what obligations they have to pregnant employees under the PWFA.

A copy of the final rule can be accessed here.

A copy of just the rule (and not the commentary) can accessed here.