April 30, 2024
Pregnant People Protections
Pregnancy is not for the faint of heart. It involves building an entire human with all the parts, some of which you may not have. While you do this, your body changes to accommodate the work. This causes everything to hurt while specific parts expand at astonishing rates that affect all of your other systems.
You also have to pee every hour. You wake up in a new body every morning. And you have exactly seven minutes from feeling a teensy bit hungry to being ravenous and wanting to break things. It's an extremely short window. Don't ask.
The point is, there's a lot going on and it requires significant adaptation and care.
Pregnancy is also life threatening. I had two healthy pregnancies and almost died both times, once during birth and the other from postpartum depression. In the US, the maternal death rate has increased significantly in the past 5 years. The primary causes are cardiovascular conditions (heart), obstetric hemorrhage (bleeding out), and self-harm or murder. Homicide is a leading cause of death during pregnancy.
Being a woman is getting more dangerous. Being pregnant can be deadly.
And that's just part of why pregnant people need protections. Here's the latest from the EEOC and Fisher Phillips on the Pregnant Workers Fairness Act.
A finalized rule released by the EEOC Monday will require employers to accommodate applicants and workers who need time off or other workplace modifications for an abortion procedure or recovery. That is the most significant of several key developments contained in the final regulations that will soon govern the federal pregnancy accommodation law that took effect last year. What are the eight most important aspects of the final regulations to the Pregnant Worker Fairness Act (PWFA) that employers need to know?
Quick Overview of the Federal Pregnancy Accommodation Law
Before we dive into the eight things you need to know, let’s make sure you understand the PWFA basics. The law – which took effect June 2023 – requires employers with at least 15 employees to consider employee and applicant accommodation requests related to pregnancy, childbirth, or related medical conditions the same way you consider requests for accommodation related to disabilities under the Americans with Disabilities Act (ADA). If you want a comprehensive recap, you can read our detailed FAQs about the PWFA here.
The key development that just took place: the Equal Employment Opportunity Commission (EEOC), the federal agency charged with regulating the PWFA, released its finalized rules on Monday providing clarity to the law. We’ve reviewed the 408 pages of the EEOC’s release so you don’t have to and have summarized the eight biggest developments here.
The finalized rule contains a very broad definition of “pregnancy, childbirth or related medical conditions.” A non-exhaustive list of possible circumstances that fall within the broad definition includes:
The finalized rule is bound to be controversial given that it expressly requires employers to consider abortion accommodations. According to Bloomberg Law, over 95% of the 100,000+ comments offered by the general public after reviewing the draft rules released in October related to abortion.
In response to employer concerns about the abortion accommodation requirement, the EEOC noted that “nothing in the PWFA requires, or forbids, an employer to pay for health insurance benefits for an abortion.” The Commission expects the most common requests to be for time off to attend an abortion-related appointment or for recovery. But given the debate over including abortion-related accommodations, we expect this aspect of the regulations to soon be tested in court.
While the PWFA contains no express exemption for religious-based employers, the EEOC encourages any religious employer facing a charge of discrimination under this law to raise a defense as soon as possible. The agency says it will consider such matters on a case-by-case basis.
Only “qualified” applicants and employees will be covered under the PWFA – but the final rule provides a sweeping definition that may encompass many workers as covered under the PWFA. As illustrated below, the PWFA is much broader than the ADA, since it includes terms like “temporary” and “in the near future,” which may be more challenging for employers to determine when handling requests.
The law says that qualified employees and applicants are covered by the law if they have “known limitations” that relate to pregnancy, childbirth, or related medical conditions. This phrase is defined as follows:
In other words, workers with healthy and normal pregnancies could seek and receive accommodations under the PWFA. Unlike the ADA, there’s no threshold for the severity of the physical or mental conditions for accommodation requests.
Accommodations are simply modifications or adjustments that would enable an applicant or employee to perform the essential functions of the job. They could apply to the job application process or the job itself. The rule provides a long list of potential accommodations employers will need to consider, including:
This list is not exhaustive. The EEOC and courts may consider other accommodations to be “reasonable,” so employers will want to work with the employee during the interactive process to review these options but to also identify other possible accommodations.
If you have reasonable concerns about whether a physical or mental condition or limitation is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” you may request information from the employee regarding the connection.
When requesting documentation, the EEOC expects you to follow best “interactive process” practices. This is a method borrowed from the ADA, generally calling for “a discussion or two-way communication between an employer and an employee or applicant to identify a reasonable accommodation.” The rule also requires you to be reasonable in your requests for documentation and not seek more information than is required in order to make a proper determination.
Employers can only deny accommodation requests if they would impose an “undue hardship” on business operations. In general, an accommodation would create an undue hardship if it would cause significant difficulty or expense for operations.
Under the final rule, the following factors may be considered when determining whether temporarily suspending an essential function of the job will cause an undue hardship:
The finalized rule is slated to be published in the Federal Register this coming Friday (April 19) and take effect 60 days later – on June 18, 2024. There is a chance that the effective date could be delayed or set aside completely by court action, so stay tuned for more information.
The rule confirms that the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. At least 30 states and five cities require certain employers to provide some form of accommodations to pregnant employees. If you operate in one of these locations, your practices may not need to change much, or at all.
What Should You Do?
You have a few months to prepare for these rules to take effect. To position your organization most effectively, you should consider the following steps:
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