EEOC Issues Final Rule for Pregnant Workers Fairness Act

The EEOC issued its final rule regarding interpretive guidance on the Pregnant Workers Fairness Act (PWFA) on April 15, 2024 and if you haven’t read it yet, prepare for an eye-opener.

The PWFA became effective on June 27, 2023.  The law required employers with 15 or more employees to provide reasonable accommodations to employees who are unable to perform an essential function or functions of their job because of pregnancy.  The Act made clear that a pregnant worker’s limitation did not have to meet the criteria under the Americans with Disabilities Act (ADA), where the employee would be required to have a qualifying disability associated with their pregnancy to receive an accommodation.

At the time the PWFA was enacted, employers (and their attorneys) established situations in which the need for pregnancy accommodation arose, and the accommodations that would be reasonable.  Compliance with the PWFA included giving a pregnant employee a stool or a chair, allowing a pregnant employee to have food or water in the work area, more frequent breaks, allowing pregnant employees to be excused for lifting requirements or work with hazardous chemicals.  Employees experiencing postnatal conditions were also entitled to reasonable accommodation, such as postpartum depression or complications recovering from delivery.  As with the ADA, continuous or intermittent leave was considered a reasonable accommodation under some circumstances.

When the final rule was issued, the PWFA was far more expansive than anyone had considered possible.  The rule included IVF, birth control, abortion (undergoing one as well as choosing not to have one), low milk supply, and anxiety, for example, under the “because of pregnancy” umbrella.  The EEOC final rule also makes clear that this list is illustrative, not exhaustive, and includes conditions that may be “modest, minor, or episodic.”  

Many employers hearing about the final rule feared noncompliance with the Act, both for logistical reasons and the effect on both management values and employee morale if the employer is required to grant leave to an employee for a reason many employees oppose and have very strong feelings about.  Employers also worried about staffing and the ability to build units or serve customers if pregnant employees could now be granted leave for conditions which previous pregnant employees were told to handle on their own, or their own time.

At this time, 17 states have filed lawsuits against the EEOC, claiming it exceeded its authority when it included abortion in its guidance, as abortion was not specifically provided for in the PWFA.  The Sixth Circuit already has precedence protecting employees from discipline or termination because they chose to have an abortion, and Title VII under the Civil Rights Act has been subject to a rule since allowing employees to use vacation, sick leave, or PTO to cover time off that is spent having an abortion.

This is a highly charged political issue and employers may want to hide their heads in the sand rather than involve themselves with the PWFA.  But until the courts say otherwise, all public and private employers with 15 or more employees must follow all components of the PWFA and the EEOC guidance to remain legally compliant.

The experienced employment law attorneys at myHRcounsel will keep your organization compliant with the most current laws, statutes, rules, regulations, and caselaw.