04/18/2024

Employers Must Provide Abortion-Related Accommodations For Workers Under New EEOC Rule

The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final regulations for purposes of implementing the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect in June 2023 and requires employers with 15 or more employees to consider accommodation requests from employees and applicants for “pregnancy, childbirth, or related medical conditions” in the same manner as accommodation requests under the Americans with Disabilities Act (ADA). Employers must provide reasonable accommodations to “qualified” individuals with a “known limitation” due to pregnancy, childbirth or related medical conditions, unless doing so would impose an undue hardship.

The final EEOC regulations provide clarity and meaning to several key provisions contained in the PWFA. Most controversial is the EEOC’s finding that abortion falls within the definition of “pregnancy, childbirth or related medical conditions” under the PWFA. Many lawmakers have objected to the EEOC’s interpretation claiming that the EEOC expanded the regulations beyond what Congress intended under the PWFA. Critics have also objected to the EEOC’s interpretation based on the moral and religious implications. According to Bloomberg Law, the EEOC received more than 100,000 comments to the proposed rules and over 96,000 of the comments addressed the topic of abortion. In light of all of the opposition, it is likely that the new rules will be challenged in judicial proceedings.

Here are some of the key questions that were answered in the new regulations:

1.    What is covered under the PWFA’s definition of “pregnancy, childbirth or related medical conditions?”

As stated above, the EEOC has taken the position that abortion is a “related medical condition” covered under the PWFA. According to the EEOC, the following are also covered:

• Current, past, and potential pregnancy;
• Fertility treatments and infertility;
• Contraception;
• The termination of a pregnancy including a miscarriage or stillbirth;
• Illnesses arising from pregnancy including nausea or vomiting, edema, preeclampsia, carpel tunnel and other pregnancy-related issues and conditions;
• Mental conditions arising from pregnancy including antenatal (during pregnancy) anxiety, depression or psychosis, as well as post-partum anxiety, depression or psychosis;
• Lactation and issues relating to lactation; and
• Menstruation.

2.    When are employees deemed “qualified” for protections under the PWFA?

Under the EEOC’s final rule, numerous workers will qualify for accommodations. The PWFA is much broader than the ADA. Employees who are unable to perform the essential functions of their job on a temporary basis are covered. An employee will be qualified under the PWFA if the essential function of the job “could be performed” by the employee “in the near future.” Under the EEOC’s regulations, “in the near future,” generally means 40 weeks. However, the EEOC retains the authority to make case-by-case determinations on duration.

3.    When will a qualified employee be considered to have a “known limitation” relating to pregnancy, childbirth or related medical conditions?

In simple terms, a limitation will be “known” by an employer if it is communicated by the worker. The communication can be oral or written and does not require any specific verbiage.

The EEOC adopted a very broad definition for the term “limitation” to encompass any physical or mental condition related to, affected by, or arising out of the pregnancy, childbirth, or related medical conditions. Unlike the ADA, the worker does not have to demonstrate that a limitation has reached a certain level of severity. Instead, the PWFA covers issues or problems that are modest, minor or episodic. The PWFA covers “needs or problems related to maintaining the employee’s health” or reducing pain or risk during a normal pregnancy.

4.    What accommodations will need to be provided?

Generally, in determining whether an accommodation is reasonable or presents an undue hardship, the EEOC will conduct a fact-specific inquiry similar to the ADA. In the new rules, the EEOC has identified a long list of accommodations that employers should consider under the PWFA including:

• Job restructuring, schedule changes, part-time duty, light duty, as well as paid or unpaid leave;
• Frequent breaks during the workday;
• Modifications to equipment, devices or uniforms;
• Making facilities accessible and implementing modifications in the workplace;
• Allowing employees to sit or stand;
• Remote work;
• Reserved parking spaces;
• Suspending one or more essential job functions on a temporary basis; and
• Modifying or adjusting workplace policies.

According to the EEOC, abortion-related accommodations may require time off work to attend an abortion-related appointment or for purposes of recovery. There is no requirement to provide paid leave unless the employer’s policy provides paid leave. The EEOC has stated that abortion-related accommodations do not require employers to pay for abortions under a healthcare plan or any travel-related expenses.

5.    When can documentation be requested?

Under the EEOC’s final regulations, an employer is permitted to require documentation if it is deemed reasonable to determine whether the individual has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Reasonable documentation can also be requested to describe the change or adjustment to working conditions that are needed due to the worker’s limitation.

6.    When does the new rule take effect?

The final rule is scheduled to take effect on June 18, 2024 (i.e., 60 days after issuance). In light of the controversy surrounding the new rules, there is a chance that the effective date could be delayed or the new rules may be enjoined or set aside in a judicial proceeding.

7.    Is there an exception for religious-based employers?

There is no exception under the PWFA for religious-based employers. The EEOC has acknowledged that employers may raise a defense on religious grounds and the EEOC will consider such defenses on a case-by-case basis. EEOC Chair Charlotte Burrows stated that “the EEOC takes great care to observe religious exemptions” and there may be “instances in which a religious defense will apply, and it will just depend on the facts.” Employers will likely need to assert such defenses as part of the undue hardship analysis.

It is important for employers to become familiar with the new regulations whenever accommodation requests are submitted relating to pregnancy or associated medical conditions. It is clear that the PWFA is intended to expand accommodations for employees. Thus, a critical review should be conducted before denying any accommodation as unreasonable or presenting an undue hardship. Questions regarding the new rules can be directed to McGrath North’s Labor and Employment Group.