On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published much anticipated regulations implementing the Pregnant Workers Fairness Act (PWFA). These regulations will take effect in June. The PWFA, passed in December 2022, requires employers to provide reasonable accommodations to employees not only because of their pregnancy, but also for medical conditions related to pregnancy and childbirth, such as morning sickness, endometriosis, and diabetes. Notably, this includes a requirement to grant accommodations related to miscarriages, stillbirths, and abortions.
The EEOC proposed its implementing regulations in August 2023. During the ensuing comment period, the EEOC received over 100,000 comments to the proposed regulations. It appears that most of these comments concerned the EEOC’s inclusion of “abortion” in the definition of “pregnancy, childbirth, or related medical conditions.” Abortion, in particular, was included on a list of related medical conditions in these regulations. In response to these comments, the EEOC noted that abortion should be included on this list because longstanding court interpretations of the phrase "pregnancy, childbirth, or related medical conditions” in Title VII included abortions (as well as miscarriages and stillbirths) as a “related medical condition.”
These regulations reflect other accommodations laws – most notably, the Americans with Disabilities Act – that require employers to undertake a fact-intensive inquiry to determine what an appropriate accommodation would be for a given employee. As with other disability and religious accommodations laws, an employee’s request for an accommodation triggers the employer’s obligation to engage in an “interactive process” with the employee. During this process, the employer and the employee work together to identify a reasonable accommodation for the employee’s condition. These regulations do, however, depart from other accommodations laws in notable ways. The PWFA’s regulations make clear, for example, that an employer may not require a pregnant employee to take leave as an accommodation for the pregnancy if another reasonable accommodation is available.
To assist employers in making these difficult accommodation decisions, the regulations identify a non-exhaustive list of factors that employers may consider in determining whether an accommodation is reasonable. The regulations also provide a list of accommodations that will, in most circumstances, be considered reasonable, including modified work schedules, leave, additional breaks, facility accessibility modifications, and space for lactation breaks (which is already required by the federal Providing Urgent Maternal Protections for Nursing Mothers Act). The regulations further identify modifications that would be reasonable accommodations “in virtually all cases.” This list includes: (1) “[a]llowing an employee to carry or keep water near and drink as needed”; (2) “[a]llowing an employee to take additional restroom breaks, as needed”; (3) “[a]llowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed”; and (4) “[a]llowing an employee to take breaks to eat and drink, as needed.”
The EEOC also noted that a “ministerial exception” applies to the PWFA for covered religious organizations, as it does under Title VII, the ADA, and other federal employment laws. Religious organizations, under this exception, would not have to provide an accommodation for a pregnant employee who performs religious duties for the religious organization, such as a pastor, music minister or religious teacher, if, as the EEOC explains in the preamble to the regulations, the employee’s treatment of her pregnancy conflicts with the religious organization’s teachings. The PWFA would, however, still apply to non-ministerial employees, such as a janitor, an executive assistant or other “lay” employees, who just happen to work for a religious organization. The EEOC stated that it would apply the ministerial exception “on a case-by-case basis in light of the facts.”
In summary, these regulations protect pregnant workers in a similar vein to protections established for religious and disabled workers, requiring similar interactive processes, reasonable accommodations, and demonstrations of undue hardship. Employers are encouraged to consult with labor and employment attorneys to ensure their policies and practices for handling pregnancy accommodations are compliant with the new regulations and to ensure they are properly assessing requests for pregnancy accommodations.
