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Pregnant worker

Navigating the Pregnant Workers Fairness Act: New Rules and Considerations for Employers

The Pregnant Workers Fairness Act “PWFA” requires an employer to provide a ‘reasonable’ accommodation to employees affected by or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation would result in an ‘undue hardship’ on the employer. On April 15, 2024, the EEOC issued additional rules to provide clarity intended to allow pregnant workers the ability to work and maintain a healthy pregnancy. The rules will go into effect on June 18, 2024. The EEOC has expressed that the PWFA is intended to cover conditions that may not rise to the level of disability covered by the Americans with Disabilities Act “ADA.”

The final regulations specify that the PWFA covers pregnancy, childbirth, or related medical conditions which may include miscarriage or abortion. The regulations suggest certain reasonable accommodations such as unpaid time off for recovery from birth, prenatal or postnatal appointments, postpartum depression, and accommodations related to seating, light duty, breaks for food, water, restroom needs, parking, uniforms, breastfeeding, and miscarriage.

Under the final rule, pregnancy, childbirth, or related medical conditions do not need to be the sole, the original, or a substantial cause of the physical or mental condition at issue in order for the physical or mental condition to be “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” Of note, the rules cannot be used to require a job-based health plan to pay for any procedure.

Employers cannot require an employee covered under the Act to take leave if other reasonable accommodations can be provided. If an employer decides to seek supporting documentation for the accommodation being requested, it is only permitted to do so under the final rule if it is reasonable to require documentation under the circumstances. Similar to the ADA, the need for an accommodation under the PWFA can be communicated verbally or in writing and can come directly from the employee or applicant or a representative. The employee or applicant only needs to convey the relevant information and need for accommodation to trigger the employer’s obligations.

Employers should consider implementing specific policies and procedures to implement the requirements of the PWFA. This would include a centralized process for considering accommodation requests to help ensure consistent implementation, and a process for engaging in an interactive process to meaningfully communicate with the employee seeking accommodation. Employers should also consider reviewing existing rules to provide clarity in situations that may apply, such as clear call-off rules that specify when and how workers should notify their employers that they will miss work or arrive late. The rule should specify how soon before missing a shift the employee must provide notice and exactly how to provide it, such as calling a specific phone number, or communicating with one specific person.

Our Employment Law team at Goosmann can answer your questions or help implement policies consistent with this new guidance. Please contact Goosmann Law Firm for more information.