On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued a final rule to implement the Pregnant Workers Fairness Act (PWFA). The PWFA requires employers to make reasonable accommodations for employees who have a known limitation due to pregnancy, childbirth, or related medical conditions, unless the accommodation poses an undue hardship to the employer.
The PWFA was the first federal statute enacted in 45 years to protect on-the-job rights of pregnant workers. The PWFA went into effect on June 27, 2023, but the long-awaited final rule dictates how the EEOC will interpret and apply the law. The final rule also explains the PWFA’s protections in more detail, providing additional guidance to workers, employers, and the courts. The final rule is expected to be published in the Federal Register on April 19, 2024, and it will become effective 60 days after publication (approximately June 18, 2024).
Please note that Minnesota has its own state law requiring accommodations for pregnant workers, including more frequent or longer restroom, food, and water breaks; seating arrangements; and limits on lifting more than 20 pounds. Minnesota employers need to comply with both state and federal law regarding accommodations for pregnant employees.
The EEOC’s final rule for the Pregnant Workers Fairness Act includes the following highlights and clarifications:
- “Having or choosing not to have an abortion” is included in the list of “pregnancy, childbirth or related medical conditions” covered by the PWFA.
- However, the PWFA does not require an employer-sponsored health plan to pay for or cover an abortion, nor does it require reasonable accommodations that would cause an employer to pay for travel-related expenses to obtain an abortion, but it would cover an accommodation for attending a medical appointment or for recovery relating to abortion.
- Other “related medical conditions” include lactation, miscarriage, stillbirth, and postpartum depression, among other specific conditions that are listed in the final rule.
- Employees may still be considered “qualified employees” for a reasonable accommodation under the PWFA even if they are unable to perform the essential functions of their job with a reasonable accommodation, if the inability to perform the essential functions of a job is: (i) temporary, (ii) the employee could perform the job’s essential functions in the near future, and (iii) the inability to do so can be reasonably accommodated.
- “Temporary” under the PWFA means that the need to suspend one or more essential functions is for a limited time only (not permanently).
- “In the near future” under the PWFA (in the context of pregnancy) is defined as “generally 40 weeks from the start of the temporary suspension of an essential function(s),” and not an indefinite suspension.
- However, an essential function does not always need to be suspended for 40 weeks, nor must an employer automatically grant an employee’s request for a 40-week suspension of an essential function.
- In addition, an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances, which are further listed in the final rule.
- More information about the PWFA’s interaction with the Americans with Disabilities Act (ADA) was provided.
- The PWFA accommodations framework is very similar to the ADA in providing reasonable accommodations for both job applicants and employees absent undue hardship, and the PWFA provides several examples of possible reasonable accommodations (including telework, parking, and acquiring or modifying equipment, uniforms, or devices).
- Notable other provisions and definitions of the PWFA that are either the same or similar to the ADA include remedy limitations, if the employer makes a good faith effort to meet the need for a reasonable accommodation, and the definitions of “essential function” and “undue hardship,” which are the exact same as the ADA.
- A major difference is that a “limitation” under the PWFA is a physical or mental condition that triggers the interactive process, whether or not it meets the definition of “disability” under the ADA.
- The EEOC does not plan to provide an updated poster with the final rule (“The Know Your Rights: Workplace Discrimination is Illegal” poster from July 2023 will not be updated), but there are plans to provide additional guidance and information, including a document to assist small businesses, webinars, and other press releases.
Please reach out to our HR & Employment Law Team to discuss this information or any other HR and employment law questions you may have.
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