May 08, 2024 General Employment Issues

Final Rule on Employer Obligations Under the Pregnant Workers Fairness Act

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) released its final rule to implement the Pregnant Workers Fairness Act (PWFA). The rule clarifies employer obligations to provide reasonable accommodations for employees with limitations related to pregnancy, childbirth, or related medical conditions. Employers should ensure that they understand how to handle requests for accommodation, including when they are required to make an accommodation to avoid liability. 

What Are an Employer’s Obligations Under the PWFA?

Generally, employers with 15 or more employees must provide “reasonable accommodations” for a “qualified” employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.

What Medical Conditions Are Covered?

In addition to pregnancy and childbirth, the PWFA covers miscarriage or stillbirth, migraines, lactation, infertility and fertility treatment, contraception, menstruation, and pregnancy-related conditions that are episodic, such as morning sickness. Notably, the rule expressly includes abortion. The employee’s condition does not have to be severe to require accommodation. 

Who Is a Qualified Employee?

A qualified employee is one who can perform the essential functions of the position, with or without reasonable accommodation. Employees are also qualified if their inability to perform the essential functions is just temporary and the essential functions can be performed “in the near future.” Generally, this means 40 weeks.

Note that the law also applies to job applicants and former employees when relevant.

How Do Employers Determine What Is a Reasonable Accommodation?

A reasonable accommodation is an adjustment in work that would enable an employee to perform the essential functions of the job. The rule provides examples of reasonable accommodations. These can include additional work breaks, time off for doctor’s appointments or to recover from a covered condition, temporary reassignment or suspension of certain duties, remote work, and other actions.

When Does an Accommodation Constitute an Undue Hardship?

Generally, an accommodation would create an undue hardship if it would cause significant difficulty or expense for operations. In the case where an employee seeks a temporary suspension of an essential function of the job, whether that would create an undue hardship depends on various factors including the nature of the essential function, the length of time the suspension is needed, whether the work can be postponed or done by another worker, whether there is other work for the employee, and other factors.

Are There Other Exemptions Under the PWFA?

The inclusion of abortion has led to complaints from religious employers about requiring them to make an accommodation for this condition. There is no express religious employer exemption. However, the EEOC has indicated that if those employers face a charge of discrimination under the PWFA, they should raise a defense as soon as possible and the agency will consider it on a case-by-case basis.

When Does the Rule Take Effect?

The final rule was published on April 19, 2024, and goes into effect 60 days thereafter on June 18, 2024.

What Steps Should Employers Take to Comply with the Final Rule?

Employers should update their employment policies and procedures to notify employees of their rights and provide appropriate training to managers to ensure they understand the rules. In addition, employers should keep in mind that they still must comply with all federal, state, and local laws that apply to the workplace, including other laws that cover pregnancy, childbirth, and related conditions.

Please feel free to contact any of our attorneys if you have questions about the final rule or if you would like our assistance in developing employment policies and procedures.

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