Dive Brief:

• The U.S. Equal Employment Opportunity Commission announced on Monday its final rule implementing the Pregnant Workers Fairness Act, clarifying that abortion is included under “pregnancy, childbirth or related medical conditions” that are protected under the PWFA.
• EEOC said this interpretation of the law’s text is “consistent with the Commission’s and courts’ longstanding interpretation of the same phrase in Title VII.” It also noted that employees are entitled to the law’s provisions even if they have not worked for an employer for a specific length of time.
• EEOC had originally slated the rule for publication at the end of 2023, but the commission’s deadline passed without a rule in place. The rule is scheduled to be published in the Federal Register Friday, and will take effect 60 days after publication, approximately mid-June.

Dive Insight:

Congress passed the PWFA at the end of 2022. The law, which took effect last year, requires employers with 15 or more employees to provide reasonable accommodations for job applicants and employees with known limitations related to pregnancy, childbirth and related medical conditions, absent undue hardship. The law contains a framework similar to that of the Americans with Disabilities Act, attorneys previously told HR Dive.

In a press release Monday, EEOC Chair Charlotte Burrows said the final rule provides important information to employers, employees and job seekers and encourages both sides of an employment arrangement “to communicate early and often, allowing them to identify and resolve issues in a timely manner.”

The rule contains several examples of accommodations that employers may need to provide covered employees as well as scenarios of how the law’s interactive process works in practice.

In one example detailed in the rule, a teacher who is typically only able to take bathroom breaks when her class is at lunch requests additional bathroom breaks during her sixth month of pregnancy. Given that several teachers or aides in nearby classrooms or an administrative assistant from the main office could provide supervision with a few minutes’ notice, her employer would not be able to establish an undue hardship is imposed by the additional bathroom breaks.

EEOC published updated “Know Your Rights” posters for employers to display after the PWFA took effect in 2023, and the commission is not updating its poster to reflect the final regulations, a spokesperson told HR Dive in an email. However, EEOC did publish an accompanying webpage with additional information.

Agency responds to abortion inclusion criticism

The agency received more than 100,000 comments in response to the proposed rule, approximately 54,000 of which asked EEOC to exclude abortion from its definition of related medical conditions, it said. EEOC said the PWFA does not require an employer-sponsored health plan to pay for or cover an abortion, nor does it require reasonable accommodations that would cause an employer to pay for travel-related expenses to obtain an abortion.

“Given these limitations, the type of accommodation that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or for recovery,” the agency said. “The PWFA, like the ADA, does not require that leave as an accommodation be paid leave, so leave will be unpaid unless the employer’s policies provide otherwise.”

On a press call Monday following the rule’s announcement, Burrows said employers would have the opportunity to raise objections to the provision of accommodations related to procuring an abortion, particularly on religious grounds, but that such scenarios would depend on fact-specific circumstances.

“I want to be clear that the EEOC takes great care to observe religious exemptions and [ensure] we are helpful to those employers who raise them in understanding our process,” Burrows said. “There may be instances in which a religious defense will apply, and it will just depend on the facts.”

Questions on employee qualification time limits addressed

In the run-up to the rule’s publication, some in the employment law space questioned how EEOC would enforce the PWFA’s eligibility requirements.

Under the law, qualified employees must be able to perform the essential functions of a job with or without a reasonable accommodation. But even if an employee cannot do so, the employee may still be qualified if their inability to do so is temporary, the employee could perform the job’s essential functions in the near future, and the inability to do so can be reasonably accommodated.

EEOC’s rule said Monday that “temporary” in the context of the statute means that the need to suspend one or more essential functions is for a limited time only, not permanent, and that this is further limited by the phrase “in the near future.”

Because pregnancy is a temporary condition, “in the near future” is defined as “generally 40 weeks from the start of the temporary suspension of an essential function(s),” EEOC said. But an essential function need not always be suspended for 40 weeks, EEOC said, nor must an employer automatically grant an employee’s request for a 40-week suspension of an essential function. 

“The actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires, and the covered entity always has available the defense that it would create an undue hardship,” EEOC said.

For conditions other than pregnancy, EEOC said it did not set a specific length of time to define what “in the near future” means, noting only that an indefinite suspension of an essential function would not meet this definition.

Commission specifies how employees may communicate with employers

In response to public comments that questioned the rule’s requirements around how employees must communicate accommodation requests and known limitations to employers, EEOC said employees must be able to do so by “communicating with the employer representative(s) with whom they would normally consult if they had questions or concerns about work matters.”

“Employees should not be made to wait for a reasonable accommodation, especially one that is simple and imposes negligible cost or is temporary, because they spoke to the ‘wrong’ supervisor,” EEOC added. “The individuals to whom an employee can communicate to seek accommodation include persons with supervisory authority for or who regularly direct the employee’s work (or the equivalent for the applicant) and human resources personnel.”

Employees also may direct such communications to other appropriate officials, such as search firms, staffing agencies or third-party benefits administrators, EEOC said.

Republican commissioner slams ‘needlessly expansive’ rule

In a LinkedIn post Monday, Andrea Lucas, one of EEOC’s two Republican commissioners, said she voted against approving the rule. Lucas wrote that while she supports the PWFA and some components of the EEOC’s rule, she disagreed with others, including the majority’s interpretation of the phrase “pregnancy, childbirth or related medical conditions.”

“Pregnant women in the workplace deserve regulations that implement the Act’s provisions in a clear and reliable way,” Lucas said. “It is unfortunate that the elements of the final rule serving this purpose are inextricably tied to a needlessly expansive foundation that does not.”