The Equal Employment Opportunity Commission (“EEOC”) has issued its final rules implementing the Pregnant Workers Fairness Act (“PWFA”)—legislation that requires employers to offer reasonable accommodations to employees who are pregnant or have a condition related to pregnancy or childbirth.
Here’s what employers need to know.
Who—Which Employers Qualify:
The PWFA applies to the following types of employers with 15 or more employees:
- Private employers
- State- and local-government employers.
The PWFA also applies to federal agencies, employment agencies, and labor organizations.
Who—Which Employees the PWFA Protects:
In its enactment, the PWFA is intended to provide broad anti-bias protections to pregnant U.S. employees. The final regulations adopted this week make clear that the protections apply to medical conditions related to current, potential, and past pregnancies.
More specifically, the PWFA protects employees and job applicants with physical or mental “limitations” related to, affected by, or arising out of “pregnancy, childbirth, or related medical conditions” including uncomplicated pregnancies, vaginal deliveries or cesarian sections, miscarriage, endometriosis, postpartum depression, edema, placenta previa, fertility treatments, miscarriages, and lactation. Under the final regulations issued on April 15, 2024, the limitations covered by the PWFA also include limitations related to abortion.
What:
Employers covered by the law must provide “reasonable accommodations” to employees with conditions related to pregnancy or childbirth. That is, employers must modify or adjust the work environment and the jobs of such employees to enable them to perform their essential job functions, unless making such accommodations would cause the employer “undue hardship”—significant difficulty or expense. The PWFA mirrors the structure of the ADA in that it requires the employee to formally request an accommodation, rather than triggering an automatic entitlement to any such accommodation upon announcement of a pregnancy or covered, related condition.
Employers are also prohibited from denying pregnant workers or applicants employment opportunities based on the need for a reasonable accommodation, and from requiring pregnant workers to take leave when a reasonable accommodation would have allowed them to keep working.
Among the examples of reasonable accommodations included in the final rules issued on April 15, 2024, are restroom breaks; telework; temporary reassignments; and time off to attend health-related appointments or to recover from childbirth or miscarriage.
If you are an employer subject to the PWFA and are facing pending charges alleging that you failed to provide a reasonable accommodation, you or your lawyer must determine whether the new regulations affect those charges, and whether you are facing additional potential liability as a result.
All employers should also update their handbooks and other relevant policies to ensure they incorporate the protections and accommodation process provided to employees under the final regulations.
When:
While the EEOC has accepted discrimination charges under the PWFA since it first took effect in June 2023, the final regulations just issued go into effect 60 days from April 19, 2024—the date of its publication in the Federal Register. These regulations will govern any charges filed after that date.
Other Important Considerations for Employers:
The PWFA regulations apply only to the accommodations required for affected employees. Other EEOC laws protect pregnant workers and applicants from discriminatory actions such as terminations of employment. Also, more than 30 states and cities have laws requiring employers to provide reasonable accommodations to pregnant workers. In instances where those laws afford greater protections to pregnant workers than the PWFA, the state and local laws apply (that is, state and local laws that impose greater obligations on employers supersede the PWFA).
Employers should only seek supporting documentation for employees’ requested accommodations “when reasonable,” according to the final rules.
Employers can object to the accommodation requirements based on religious beliefs, undue hardship, or other grounds. These defenses extend to “situations where an employee is seeking a reasonable accommodation for a limitation related to an abortion,” according to EEOC spokesman Victor Chen.
To determine how to handle any employee’s reasonable accommodation request, contact Connell Foley’s Labor and Employment Team.
PartnerMolly Kellett is an experienced litigator focusing on complex commercial cases and employment law. She approaches each matter with an eye toward maximizing efficiency, providing expedient solutions that protect clients from ...