Margaret Gentzen, Attorney
Haley Spiewak, Law Clerk
The U.S. Equal Employment Opportunity Commission (EEOC) has just issued a final rule to implement new regulations for the Pregnant Workers Fairness Act (PWFA). The final rule will take effect 60 days after its publication, approximately June 18, 2024. After considering over 100,000 public comments, the agency aims to clarify the definitions and limitations of the current law, specifically abortion accommodations.
The PWFA, enacted in June 2023, requires employers with 15 or more employees to provide “reasonable accommodations” to qualified employees with limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer undue hardship. The final rule reiterates that the limitation or condition does not need to be a “disability” as defined by the ADA.
The Agency has now clarified that abortion, miscarriage, and stillbirth are considered “related medical conditions” under the PWFA definition. Under the PWFA, employers or healthcare providers are not required to provide or pay for abortions or travel-related expenses. Time off for an abortion procedure or recovery would be considered reasonable accommodations under the Act. Still, the EEOC will consider an employer’s religious objections on a case-by-case basis.
Various examples of reasonable accommodations under the PWFA include:
- Lactation accommodations such as nursing during work hours
- Additional breaks to sit, eat, drink water, or use the restroom
- A stool to sit on while working
- Closer parking
- Flexible hours
- Appropriately sized uniforms and safety apparel
- Leave to recover from childbirth or miscarriage
- Temporary reassignment or suspension of certain job duties that are not safe for pregnancy
- And more
Factors considered under the “undue hardship” analysis include the length of time the employee will be unable to perform the essential function, whether the essential function can be postponed for a length of time, the nature and frequency of the essential function, and more.
This final rule seeks to provide information and guidance to help employers understand and meet their responsibilities under the PWFA, and for employees or job seekers to be knowledgeable about their rights. Employers should be prepared for the final rule to take effect soon.
If you are an employer that has more questions about the PWFA, contact Fox Smith at 314‑588‑7000.