On April 19, the The U.S. Equal Employment Opportunity Commission (EEOC) published its final rule and interpretive guidance to implement the Pregnant Workers Fairness Act (PWFA), which was passed by a bipartisan majority in the U.S. Senate and House in 2023 and requires covered employers to provide reasonable accommodations to qualified employees and applicants who have limitations related to pregnancy, childbirth or related medical conditions.
The PWFA is built upon existing protections against pregnancy discrimination under Title VII Of the Civil Rights Act of 1964. Because pregnancy alone is not recognized as a qualifying “disability” under the Americans with Disabilities Act (ADA), prior to the passage of the PWFA, pregnant employees could be denied requests for reasonable accommodation in the workplace. The EEOC’s final rule addresses that gap. Under this final rule, employees are entitled to reasonable accommodations for pregnancy-related conditions.
The final rule includes specific examples of accommodations that may be appropriate under the PWFA. These include additional breaks to drink water, eat or use the restroom; a stool or chair to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage.
The final rule also provides guidance on what limitations and medical conditions are included in the PFWA’s terms “pregnancy, childbirth, or related medical conditions.” Drawing from the language of the statute and the EEOC’s longstanding definition of these terms under Title VII of the Civil Rights Act of 1964, the final rule specifies that employees or applicants may seek reasonable accommodation for “related medical conditions” relating to pregnancy or childbirth like migraines, lactation, ectopic pregnancy, preterm labor, pelvic prolapse, nerve injuries, nausea and vomiting, dehydration, high blood pressure, anxiety, depression, menstruation and even episodic conditions like morning sickness. Terminations of pregnancy — including miscarriage, stillbirth or abortions — are covered as well. The list is non-exhaustive.
Prior to implementing this final rule, the EEOC began accepting charges of discrimination based on alleged violation of the PWFA after it was enacted last summer.
On April 25, a group of 17 state attorneys general filed a lawsuit in the U.S. District Court for the Eastern District of Arkansas challenging the EEOC’s final rule, alleging that the guidance in the final rule exceeds the scope of the PWFA as passed in 2022 with bipartisan support. The lawsuit focused on the provision in the rule that would allow an employee to seek an accommodation in the form of time off to obtain or recover from an abortion procedure. This challenge does not seek to invalidate the PWFA itself, but rather to enjoin any enforcement of the EEOC’s final rule and declare the portion of the rule that includes abortion as a covered pregnancy-related condition invalid.
For now, employers should immediately update their employee policies and handbooks to include the Pregnant Workers Fairness Act and should educate their Human Resources departments and all supervisors of this expanded statutory employee protection and await clarification of the administrative guidance.
Caitlin Campbell Stepina is an associate attorney at the Rose Law Firm in Little Rock. She practices primarily in the areas of employment-management litigation and labor defense in the healthcare, transportation, manufacturing and retail industries. She can be reached at cstepina@roselawfirm.com.