Pregnant black woman at the office
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On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) went into effect, and today, April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued regulations implementing the law.

The final rule will be published on April 19, 2024, and becomes effective 60 days later (on June 18, 2024). During the comment period, the EEOC received over 100,000 comments about the rule. Over 96,000 comments mentioned abortion. According to reports, the rules were passed 3-2, along party lines, by the EEOC commissioners. The final rule is 408 pages – so fun reading for your favorite Fractional General Counsel.

The PWFA extends the protections to pregnant workers, from Title VII of the 1964 Civil Rights Act, the Americans with Disability Act, the Family and Medical Leave Act, and the PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act). Employers will find that the reasonable accommodation requirements under the PWFA rules are very similar to the ADA reasonable accommodation interactive process, including the analysis on undue hardship.

Similar to the ADA, there are no “magic words” that are required to trigger protections from the PWFA. Employers are not required to seek documentation from medical providers and should do so only when it is reasonable under the circumstances.

For many pregnant workers and their employers, the most anticipated accommodation will be additional time off or adjustment of the worker’s schedule for medical appointments and length of day/exhaustion. There may be additional breaks, adjustment of duties, or remote work accommodations required.

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Frequently Asked Questions about the Pregnant Workers Fairness Act

What is the Pregnant Workers Fairness Act?

The Pregnant Workers Fairness Act (PWFA) requires employers to provide “reasonable accommodations” to employees as “related to, affected by, or arising out of pregnancy, childbirth or related medical conditions.”

Who is covered by the PWFA?

The PWFA covers both current employees and qualified applicants who have known limitations. These limitations are physical or mental conditions of pregnancy, childbirth, and related medical conditions.

In addition to the pregnant worker themselves, employees or individuals that are helping pregnant workers exercise their rights are also protected by the PWFA. In other words, employers should not retaliate against workers helping pregnant workers exercise their rights under this law.

Is there a waiting period before an employee is eligible under the PWFA?

No, the PWFA applies as soon as someone applies for a job. This means that there is no one-year waiting period like the FMLA. Moreover, there are no geographic restrictions.

What if the accommodation imposes an undue hardship on the employer?

Similar to the Americans with Disability Act, the accommodations under PWFA are not required if the requested accommodations would require an “undue hardship” on the employer. An undue hardship is one that is significantly difficult or expensive for the company.

Employers should go through the interactive process, like they would for an ADA accommodation to determine whether the particular request would be an undue hardship and if there are suitable alternatives for the employee before determining that the request is an undue hardship.

Which employers does the PWFA apply to?

The PWFA applies to private employers with 15 or more employees. It also applies to state and local governments, Congress, and federal agencies. Employment agencies and labor organizations are also covered.

Does the PWFA pre-empt state or local laws for pregnant workers?

No. The PWFA does not replace any federal, state, or local laws that give more protections to pregnant workers. This is, however, now the bare minimum that employers are required to do.

What reasonable accommodations are required under the PWFA?

Like under the ADA, which PWFA reasonable accommodations are going to be required will be determined on a case-by-case situation. Some examples could be additional or longer rest breaks; altering dress or uniform code; remote work; altering the work schedule for shorter hours or part-time work; time off for medical appointments; temporary change of duties; and time off or leave to recover from childbirth, miscarriage, or other related medical condition.

Does the PWFA cover abortion?

Yes, the PWFA covers accommodations related to abortion. The PWFA does not require that an employer or their insurance cover abortion; however, the PWFA and the April 15 rule does require that employers grant reasonable accommodations for an abortion. The most common accommodation will likely be time off to recover from the medical procedure.

Does the PWFA apply in Texas?

Following President Joe Biden signing the PWFA into law, the State of Texas filed a lawsuit, claiming that the PWFA and the rest of the Consolidated Appropriations Act of 2023 was passed without a quorum. The House of Representatives allowed non-present members to be included in the quorum and vote by proxy. However, the scope of the injunction is very narrow, applying only to the State of Texas and not to any private employer, nor any other governmental employer other than the State of Texas. Therefore, if you are an employer in the state of Texas, you should comply with the PWFA reasonable accommodation requirements.

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