On Monday the Equal Employment Opportunity Commission (EEOC) reported that the final version of the Pregnant Worker Fairness Act (PWFA) regulations will be published in the Federal Register April 19th. The PWFA was passed December 29, 2022, and took effect in June of 2023. Last August proposed rules were released, and the public’s comments were requested. Over 100,000 comments were received.
The PWFA covers employers that have 15 or more employees and continues to develop protections against discrimination covered by Title VII of the Civil Rights Act as amended by the Pregnancy Discrimination Act (1978) and also under the Americans with Disabilities Act.
What conditions around pregnancy were addressed by the PWFA? Including pregnancy of course, other conditions covered by the law are lactation, endometriosis, infertility and fertility treatments, and miscarriages as well as abortion.
In the Final Regulations the EEOC held to its position that protections under the law include the medical procedure of abortion despite many comments in opposition that stated abortion involved the destruction of human life, not the giving of life as with pregnancy. One EEOC Commissioner Andrea Lucas issued a 15-page statement detailing her opposition to the inclusion of abortion coverage under the PWFA.
The EEOC argues that the plain text of the statute and both the Commission’s and court’s history of interpreting those words to include abortion is how the Commission will interpret them under the PWFA.
The PWFA requires accommodations for “physical or mental condition related to, affected by, or arising from pregnancy, childbirth, or related medical conditions.”
The final rules will take effect sixty (60) days after their publication in the Federal Register which is expected to be Friday April 19th.
Some of the protections the EEOC outlined already and will continue in the Final Regulations are;
- Numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool 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, among others.
- Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness. This guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII of the Civil Rights Act of 1964, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions from Title VII.
- Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.
- Clarification that 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.
- Explanation of when an accommodation would impose an undue hardship on an employer and its business.
- Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.
The PWFA prohibits:
- Fail[ing] to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship;
- Requir[ing] an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
- Deny[ing a job] or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Require[ing] an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Punish[ing] or retaliate[ing] against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation);
- Coerce[ing] individuals who are exercising their rights or helping others exercise their rights under the PWFA.
The Final Rules provide employers and employees more information and examples on accommodations that may be provided under the law.
For more information about how to accommodate an employee under the PWFA go to What You Should Know About the Pregnant Workers Fairness Act. And for more information on pregnancy discrimination go to https://www.eeoc.gov/pregnancy-discrimination.
Sources: Law360 Breaking: EEOC Unveils Final Pregnancy Accommodation Rule (4/15/2024) and EEOC Maintains Broad Take on PWFA In Final Rule (4/15/2024); SHRM EEOC Releases Final Regulations for Pregnant Workers Fairness Act (4/15/2024); EEOC Webpage. What You Should Know About the Pregnant Workers Fairness Act
By Michael Burns, courtesy of SBAM-approved partner, ASE.
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