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The Equal Employment Opportunity Commission (EEOC) has recently released extensive final regulations under the Pregnant Workers Fairness Act (PWFA). The regulations were published in the federal register on April 19, 2024, and will take effect on June 18, 2024. Here’s what employers need to know.
Overview of PWFA
The PWFA took effect in June 2023. This law requires employers with 15 or more employees to consider employee or applicant requests for accommodation for pregnancy, childbirth, or other related conditions in the same way it would a request under the Americans with Disabilities Act (ADA). This includes going through the interactive process to determine an accommodation that works for both the employee and employer. Some examples of reasonable accommodations include, but are not limited to:
- Allowing workers to sit or drink
- Providing closer parking
- Offering flexible working
- Providing appropriately sized uniforms and safety
- Allowing workers additional break time to use the bathroom, eat, and
- Excusing workers from strenuous activities or activities that involve exposure to compounds not safe for
- Giving leave or time off to recover from
Five key takeaways from the final regulations
- The definition of “pregnancy, childbirth, or other related medical conditions” is broad and includes circumstances such as:
- Termination of pregnancy – including via miscarriage, stillbirth, or abortion
- Current, past, and potential pregnancy
- Infertility and fertility treatment
- The use of contraception
- Pregnancy-related sicknesses, ranging from nausea or vomiting to edema, from preeclampsia to carpal tunnel syndrome, and many other pregnancy-related conditions
- Lactation and issues associated with lactation
- Menstruation
In response to the huge number of comments received regarding abortion during the public comment period, the EEOC noted that “nothing in the PWFA requires, or forbids, an employer to pay for health insurance benefits for an abortion.” The EEOC expects the most common accommodation here to be time off for related appointments or recovery.
There is currently no exemption for religious-based employers; however, should these employers face a charge of discrimination, the EEOC encourages the employer to raise a defense as early as possible and it will consider all matters on a case-by-case basis.
- “Qualified employees” is defined
Qualified employees covered under the PWFA include both those who can perform the essential functions of their position with or without reasonable accommodations and those whose inability to perform the essential functions of their role is only temporary (which generally means about 40 weeks).
- “Limitations” don’t have to be very
Unlike the ADA, there is no threshold for the severity of the physical or mental conditions for accommodation requests under the PWFA. “Limitation” means any physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions – including impediments or problems that are modest, minor, or episodic. It could also include actions that need to be taken to maintain the worker’s health or the health of their pregnancy, or even if the worker is simply seeking health care for their pregnancy, childbirth, or related medical condition.
- The rules list more examples of possible reasonable accommodations, including:
- Job restructuring
- Schedule changes, part-time work, and paid and unpaid leave
- Frequent breaks
- Acquiring or modifying equipment, uniforms, or devices
- Making existing facilities accessible or modifying the work environment
- Allowing sitting or standing (and providing means to do so)
- Light duty
- Telework or remote work
- Providing a reserved parking space
- Temporarily suspending one or more essential function
- Adjusting or modifying workplace policies
- Employers can deny accommodations if they would pose an undue hardship on business
After working through the interactive process, employers may deny an accommodation if it would cause significant difficulty or expense for operations. It is worth noting that throughout the interactive process, an employer may only request supporting documents to the extent they do not seek more information than is required to make a proper determination based on the claimed condition.
In determining whether an accommodation may cause an undue hardship, employers may consider:
- The length of time the employee or applicant will be unable to perform the essential function
- Whether there is work for the employee or applicant to accomplish
- The nature of the essential function, including its frequency
- Whether the employer has provided other employees or applicants in similar positions who are unable to perform essential functions with temporary suspension of those functions and other duties
- Whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function in question, if needed
- Whether the essential function can be postponed or remain unperformed for any length of time and, if so, for how long
Employer Action Items
- Review PWFA requirements to ensure you are already in
- Update HR training to familiarize your workforce with these new
- Check for more stringent requirements in your state or
- Work with legal counsel before denying any accommodation requests related to pregnancy, childbirth, or other related medical conditions.
This information has been prepared for UBA by Fisher & Phillips LLP. It is general information and provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.
