EEOC Issues Final Rule to Implement the Pregnant Workers Fairness Act

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Patricia Tsipras

April 17, 2024

Yet Another Update:  On May 21, 2025, a federal judge in Louisiana vacated the EEOC’s final rule implementing the PWFA to the extent that it requires employers to reasonably accommodate employees who choose to have an abortion.

Another Update:  Yesterday, a federal judge in Louisiana granted a preliminary injunction blocking the EEOC’s final rule and guidance implementing the Pregnant Workers Fairness Act as to “purely elective abortions.”  The injunction pauses application of the rule against four religious organizations led by the U.S. Conference of Catholic Bishops, the states of Louisiana and Mississippi and their agencies, and “any covered entity … with respect to all employees whose primary duty station is located” in those two states.  For everyone else, the rule take effect today, June 18, 2024.

Update:  The EEOC’s final rule to implement the Pregnant Worker’s Fairness Act is set to become effective tomorrow, June 18, 2024.  Earlier this year, 17 states (Arkansas, Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia) filed a lawsuit in federal court in Arkansas challenging the rule as it relates to “elective abortions.”  Specifically, the states sought an injunction, arguing that the EEOC exceeded its authority by requiring employers to accommodate elective abortions – “an abortion prompted exclusively by the woman’s choice…” – because such abortions are illegal in the 17 states.  On Friday, June 14, 2024, the court dismissed the lawsuit, concluding that the states lacked standing to challenge the final rule.

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued a 400+ page final rule – following consideration of approximately 100,000 public comments – to implement the Pregnant Workers Fairness Act (PWFA).  The PWFA requires most employers with 15 or more employees to provide “reasonable accommodations” for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.  The PWFA builds upon existing protections under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.  The final rule will be published in the Federal Register on April 19 and will become effective 60 days thereafter.

Key guidance from the final rule includes:

• Guidance regarding limitations and medical conditions for which workers[1] may seek reasonable accommodations.  Such limitations or medical conditions include miscarriage or stillbirth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness.  The EEOC noted that, whether a condition constitutes “pregnancy, childbirth, or related medical conditions” will be guided by existing Title VII precedent.
• Guidance on how to request a reasonable accommodation.  The final rule explains how a worker may request a reasonable accommodation.  The worker must identify the limitation (the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions) and that the worker needs an adjustment or change at work due to the limitation.
• Numerous examples of reasonable accommodations, including frequent breaks; sitting/standing; schedule changes, part-time work, and paid and unpaid leave; telework; parking; light duty; making existing facilities accessible or modifying the work environment; job restructuring; temporarily suspending one or more essential functions; acquiring or modifying equipment, uniforms, or devices; and adjusting or modifying examinations or policies.
• Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.  “Timely” is important here because an unnecessary delay in making a reasonable accommodation may result in a violation of the PWFA.
• Clarification that an employer is not required to seek supporting documentation when a worker seeks a reasonable accommodation and should do so only when it is reasonable under the circumstances.  The final rule has modified the definition of “reasonable documentation” so that it now means the minimum documentation that is sufficient to: (1) confirm the physical or mental condition; (2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with (1) “a limitation”); and (3) describe the change or adjustment at work needed due to the limitation.
• Explanation of when an accommodation would impose an undue hardship, which generally means significant difficulty or expense for an employer’s operations.
• Explanation of when an employer may violate the PWFA other than when it outright denies a reasonable accommodation.  For example, the PWFA (1) prohibits an employer from requiring a worker to accept an accommodation other than one arrived at through the interactive process; (2) prohibits an employer from denying employment opportunities to a worker if the denial is based on the employer’s need to make a reasonable accommodation for the known limitation of the worker; (3) prohibits an employer from requiring a worker with a known limitation to take leave, either paid or unpaid, if another effective reasonable accommodation exists, absent undue hardship; (4) prohibits an employer from taking adverse action in terms, conditions, or privileges of employment against a worker on account of the worker requesting or using a reasonable accommodation for a known limitation; and (5) prohibits retaliation and coercion, such as not providing an interim reasonable accommodation, seeking supporting medical documentation or information when it is not permitted under the PWFA, or disclosing confidential medical information.
• Information on how employers may assert defenses or exemptions, including those based on religion, in response to a charge of discrimination.

Another great resource for understanding the PWFA and the EEOC’s final rule is available on the EEOC’s webpage, “What You Should Know about the Pregnant Workers Fairness Act.”

Remember that the PWFA does not replace federal, state, or local laws that are more protective of workers impacted by pregnancy, childbirth, or related medical conditions.  Forty-six states have anti-discrimination laws in place protecting workers who are pregnant or nursing.

This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice.  Always consult an attorney with specific legal issues.

[1]              In this article, “worker” refers to a qualified employee or applicant.