04/23/2024 | Press release | Distributed by Public on 04/23/2024 09:58
04.23.2024
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Updates
On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued its Pregnant Workers' Fairness Act (PWFA) Final Rule, scheduled to take effect on June 18, 2024. The Final Rule largely leaves in place the expansive protections for applicants and employees outlined in the Proposed Rule published on August 11, 2023. The EEOC also issued Interpretive Guidance on the Pregnant Workers Fairness Act (Interpretive Guidance) that includes examples of physical or mental conditions commonly associated with pregnancy or childbirth, possible reasonable accommodations, and situations where an employer's actions could violate the PWFA.
EEOC Chair Charlotte Burrows said, "The bottom line is that no one should have to risk their job or their health just because they are pregnant, recovering from childbirth or dealing with a related medical condition."
What Is the PWFA?
As we have detailed previously, the PWFA requires employers with at least 15 employees to provide reasonable accommodations to qualified employees with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions absent undue hardship on the operation of the business of the covered entity. Importantly, the PWFA goes beyond the Americans with Disabilities Act (ADA) by establishing new and different standards governing an employer's obligation to provide "reasonable accommodations" for an employee's limitations. However, the regulations draw heavily on court decisions and agency interpretations of Title VII and ADA.
The Final Rule
The 408-page Final Rule breaks down the requirements for an employee to be eligible for PWFA protections, which include:
Opposition to the Final Rule
EEOC Commissioner Andrea Lucas, who voted against adopting the rule, issued a 15-page statement outlining her opposition, arguing that the Final Rule "broaden[s] the scope of the statute in ways that, in my view, cannot reasonably be reconciled with the text."
Lucas continued, stating "the rule fundamentally errs in conflating pregnancy and childbirth accommodation with accommodation of the female sex, that is, female biology and reproduction. The Commission extends the new accommodation requirements to reach virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system." Lucas continued, stating, "The Commission chose not to structure the final rule in a manner that realistically allows for severability of its objectionable provisions from its reasonable and rational components."
In line with Commissioner Lucas' opposition, court challenges can be expected.
What's Next?
Employers should ensure both that they are providing leave in accordance with the Final Rule and that their policies are up to date. Employers should consider training their human resource personnel on how to best handle requests for accommodations and should seek guidance from counsel to ensure compliance.
Endnotes
[1] The term "employee's representative" encompasses any representative of the employee, including a family member, friend, union representative, health care provider, or other representative. The representative need not have the employee's actual permission before communicating with the employer about the limitation, depending on the situation, such as where the employee is incapacitated.
[2] Temporary means "lasting for a limited time, not permanent, and may extend beyond 'in the near future.'"
[3] "In the near future" is defined to mean "generally 40 weeks from the start of the temporary suspension of an essential function" (i.e. the duration of a full-term pregnancy), though the definition may differ depending on factors such as the known limitation and the employee's position.
[4] Predictable Assessments are a limited number of simple modifications that do not impose an undue hardship, such as allowing the employee to drink water as needed, take additional restroom breaks, sit as needed, or to take breaks to eat or drink as needed.
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