Effective June 18, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) final rule implements the Pregnant Workers Fairness Act. This guidance positions abortion under “pregnancy, childbirth or related medical conditions” and is protected under the Pregnant Workers Fairness Act (PWFA). It also clarifies some definitions in the PWFA and states employees are entitled to PWFA’s provisions even if the employee has not worked for an employer for a specific length of time. PWFA applies to private employers that have 15 or more employees. In some situations, workers may also be entitled to receive an accommodation under Title VII or the Americans with Disabilities Act (ADA).
Final Rules Clarifications
- PWFA includes abortion in its definition of “pregnancy, childbirth, or related medical conditions.”
- PWFA does not –
- require any employee to have — or not to have — an abortion
- require taxpayers to pay for any abortions
- compel health care providers to provide any abortions
- PWFA does not require an employer-sponsored health plan to pay for or cover any item, procedure, or treatment, including an abortion.
- PWFA does not require reasonable accommodations that would cause an employer to pay any travel-related expenses for an employee to obtain an abortion.
- The type of accommodation that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or for recovery.
- PWFA, like the ADA, does not require that leave as an accommodation be paid leave; leave will be unpaid unless the employer’s policies provide otherwise.
- Limitations (physical or mental) may be modest or minor and/or episodic.
- The term “employee” should be understood to include “applicant” where relevant.
- PWFA accommodation examples are illustrative and are not intended to cover every limitation or possible accommodation. For example, “bed rest” is a colloquialism for several actions that would be better described as “rest and reduced activity.”
- PWFA does not create a right to reasonable accommodation based on an individual’s association with someone else who may have a PWFA-covered limitation. Nor does it provide accommodations for bonding or childcare. The limitation must be personal to the specific employee in question.
- An employee may seek an accommodation under the ADA if the physical or mental condition is no longer related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
The Pregnant Workers Fairness Act (PWFA) requires a covered employer to provide a “reasonable accommodation” to a qualified employee or applicant if the limitations are related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. This does not apply if the accommodation will cause the employer an undue hardship. The employer and employee should engage in an interactive process to identify the known limitation under the PWFA and the adjustment or change at work that is needed due to this limitation.
Covered employers must not:
- fail to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship;
- require an employee to accept an accommodation other than a reasonable one which is arrived at through the interactive process;
- deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- punish or retaliate 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 individuals who are exercising their rights or helping others exercise their rights under the PWFA
Undue hardship means significant difficulty or expense incurred by a covered entity, when considering:
- the nature and cost of the accommodation
- the financial resources of the employer
- the impact of the accommodation upon the operation of the employer’s ability to conduct business
- the impact of the accommodation upon other employees to perform their duties
Reasonable accommodations may include, but are not limited to:
- making existing facilities readily accessible to and usable by employees with known limitations under the PWFA
- ensuring that the area designated for lactation (other than a bathroom) is in reasonable proximity to the employee’s usual work space, is free from intrusion, has electricity and has a refrigerator for storing milk
- conducting job restructuring to include part-time or modified work schedules
- temporarily suspending an essential function(s)
- providing breaks for use of the restroom, drinking, eating, and/or resting
- modifying equipment, uniforms, or devices
- modifying the work environment (e.g., providing seating for jobs that require standing or allowing standing for jobs that require sitting)
- permitting the use of paid leave or unpaid leave to attend health care appointments, or for recovery from childbirth, miscarriage, stillbirth, or other medical conditions related to pregnancy or childbirth
- assigning light duty or modified work such as telework, remote work, or change of work site