The Equal Employment Opportunity Commission (EEOC) has issued final regulations and Interpretative Guidance to implement the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023. The PWFA requires that employers with at least 15 employees provide reasonable accommodations, absent undue hardship, to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The PWFA required the EEOC to publish final regulations by December 29, 2023. However, the EEOC did not issue final regulations until today, April 15, 2024.  The final regulations are slated to be published in the Federal Register on April 19, and will go into effect 60 days after publication.  The final regulations were issued after over 100,000 public comments were submitted in response to  the proposed regulations.

In the final regulations the EEOC clarifies, and in some instances, expands upon the circumstances in which an employer must reasonably accommodate an employee, absent undue hardship. The following is a list of some of the issues addressed in the 400+ pages of final regulations.

  • Like the proposed regulations, the final regulations cover a wide range of conditions related to pregnancy, including, fertility and infertility treatments, carpel tunnel, menstruation, postpartum depression, lactation (including both breastfeeding and pumping in the workplace), changes in hormone levels, abortion, miscarriage, stillbirth, and preeclampsia.
  • The final regulations significantly maintained the list of reasonable accommodation requests that will almost never impose an undue hardship, including permitting employees to carry or keep water nearby, take breaks as needed to eat and drink, and permitting work to be done while sitting instead of standing or vice versa.
  • The final regulations clarify the definition of a “qualified individual” as one who can perform the essential functions in the near future.  In the case of a pregnant employee, the presumption is the employee can perform the essential functions “in the near future,” within 40 weeks of suspension of the job function.  For conditions other than current pregnancy the regulations do not impose a 40-week limitation.  However, the final regulations clarify a request to indefinitely suspend an essential function is not “in the near future” so as to entitle an employee to an accommodation.
  • The final regulations further restrict the documentation and information an employer may require to support a request.
  • The final regulations state it is a best practice to provide an interim accommodation to an employee under the PWFA, and may mitigate against a claim of delay by an employee.
  • The final regulations also clarify there is no right to a reasonable accommodation under the PWFA based upon an individual’s association with someone else who may have a PWFA-covered limitation, or even if the individual themselves has a physical or mental limitation arising out of someone else’s pregnancy, childbirth or related medical condition.
  • The final regulations clarify that time for bonding or for childcare is not covered by the PWFA.
  • The final regulations also include extensive Interpretative Guidance as an Appendix, which address the major provisions of the PWFA and explain and illustrate how the final regulations will apply.  

Jackson Lewis attorneys are analyzing the substance of the final regulations and will publish a detailed report later this week designed to help employers understand the impact of these regulations. We also invite members of the employer community to join us for a complimentary webinar on May 10, 2024 at 1:00PM ET when we will discuss the final regulations, including how they differ from the proposed regulations and provide practical advice for complying with the PWFA. To register for the webinar, click this registration link.

If you have any questions about the PWFA or the implications of the regulations for your organization please contact a Jackson Lewis lawyer. As always, if you want to stay on top of changes and updates regarding the PWFA, subscribe to our Disability, Leave and Health Management Blog.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Jenifer M. Bologna Jenifer M. Bologna

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C.

Photo of Katharine C. Weber Katharine C. Weber

Katharine C. Weber is a principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group.

Photo of Catherine A. Cano Catherine A. Cano

Catherine A. Cano is a principal in the Omaha, Nebraska office of Jackson Lewis P.C.

Photo of Tania J. Mistretta Tania J. Mistretta

Tania J. Mistretta is a principal in the New York City, New York, office of Jackson Lewis P.C. She partners closely with national and local clients to advise on challenging workplace law issues, providing strategic advice on how to achieve business objectives while…

Tania J. Mistretta is a principal in the New York City, New York, office of Jackson Lewis P.C. She partners closely with national and local clients to advise on challenging workplace law issues, providing strategic advice on how to achieve business objectives while ensuring compliance with the law.

Photo of Cepideh Roufougar Cepideh Roufougar

Cepideh Roufougar is a Principal in the San Francisco, California, office of Jackson Lewis P.C.

Ms. Roufougar is Co-Leader of the California Advice and Counsel Resource Group. She advises and counsels management in all areas of labor and employment law, with a focus…

Cepideh Roufougar is a Principal in the San Francisco, California, office of Jackson Lewis P.C.

Ms. Roufougar is Co-Leader of the California Advice and Counsel Resource Group. She advises and counsels management in all areas of labor and employment law, with a focus on identifying practical solutions to help ensure compliance with state and federal law. Ms. Roufougar positions herself as a strategic partner when providing advice and counsel about litigation avoidance, employee management issues, implementing disciplinary actions, and collective bargaining issues. Her ability to see the big picture clearly and understand her client’s businesses in emotionally charged and highly complex disputes has helped her clients financially and prevented litigation. Her clients rely on her to guide them through both short-term and long-term planning to achieve their unique goals and strategies.

Ms. Roufougar is an experienced trainer and presents seminars on a wide range of subjects, including: leave management and reasonable accommodations; preventing discrimination, harassment and retaliation; implementing and sustaining disciplinary actions; conducting defensible workplace investigations; first-line supervisor trainings; performance management/evaluations; and wage and hour issues.

Ms. Roufougar has been successful in helping her clients prevail in numerous arbitrations and administrative appeals. She has extensive experience representing employers in labor and employment disputes. She has defended employers in employment litigation matters, including claims alleging violations of the Public Safety Officers Procedural Bill of Rights Act, FLSA collective actions, and claims of harassment and discrimination. Ms. Roufougar also conducts complex workplace investigations.

Before joining Jackson Lewis, Ms. Roufougar practiced at a well-regarded local labor and employment firm and served as in-house counsel for a local public agency.

Photo of Joseph J. Lynett Joseph J. Lynett

Joseph Lynett is a Principal in the White Plains, New York, office of Jackson Lewis P.C. and  and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. His practice focuses on assisting clients in meeting the legal and practical challenges…

Joseph Lynett is a Principal in the White Plains, New York, office of Jackson Lewis P.C. and  and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. His practice focuses on assisting clients in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, as well as disabled students and members of the public. Joe provides imaginative and creative solutions to the complex array of workplace disability and health management issues faced by both large and small companies.

Learn more about Joe Lynett on the Jackson Lewis website.

Photo of Tara K. Burke Tara K. Burke

Tara K. Burke is the knowledge management (“KM”) attorney for Jackson Lewis P.C.’s Disability, Leave & Health Management practice group, and is based in the Cincinnati, Ohio, office of Jackson Lewis P.C.