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Unraveling the Final Ruling of PWFA Regulations and Backlash

by | Jun 3, 2024 | Employment Law |

In mid-April, The U.S. Equal Employment Opportunity Commission (EEOC) released its final rule, putting in place the Pregnant Workers Fairness Act (PWFA). The final ruling mostly adopted the pro-worker stance of the original format of the law. However, some states are challenging what was initially a bi-partisan law.

What the PWFA Regulations Mean

The PWFA final rule prohibits employers from failing to make reasonable accommodations to the “known limitations of qualified employees or applicants, absent undue hardship” in relation to issues “arising out of pregnancy, childbirth, or related medical conditions.”

The rule requires most employers with 15 or more employees to make accommodations for workers who are pregnant or dealing with medical conditions that relate to pregnancy. The PWFA has been in place for a full year, and the new final rule from the EEOC provides more detail, clarifying the medical conditions covered and how workers can request such accommodations.

The 400-page final rule provides several key requirements:

  • Employers must not engage in any unnecessary delay in making such accommodations to employees.
  • An employee is not required to accept an accommodation, but if they reject a reasonable accommodation that they need to be “qualified” under the PWFA, then they are not considered qualified. This applies to any accommodations they may need to perform the essential functions of the job.
  • An employer must provide accommodation that provides the qualified employee with equal employment opportunities to obtain the same level of performance and access to the same level of benefits or privileges available to employees without known limitations.
  • Employers cannot deny an employee’s application for the sole reason of needing to make such accommodations for the employee.
  • The employer is also prohibited from requiring a qualified employee with a known limitation to take leave (paid or otherwise) if another reasonable accommodation exists.

Additional limitations of the law include prohibiting employers from retaliating against an employee or former employee who testifies against them related to PWFA and prohibiting any type of intimidation or threat.

EEOC Final Rule – Types of Accommodations Considered Reasonable

According to the EEOC final rule, employers must grant reasonable accommodations to meet the needs of pregnant women and provide relief from undue hardship. To better define what accommodations may apply, the EEOC laid out specific job modifications that it considers to be reasonable in virtually all cases, including:

  • Carrying or keeping water near the workers and allowing workers to drink that water
  • Providing access to restroom breaks as needed by the employee
  • Allowing workers to sit when the work requires standing or allowing workers to stand if the work requires sitting as they need to do so
  • Allowing employees breaks to eat and drink as needed

Concerns About Language Fuel Early Lawsuits

A number of states have launched lawsuits to clarify or refute the language used in the PWFA due, specifically, to the inclusion of abortion as a recognized medical condition related to pregnancy. The EEOC took a broad view in defining what accommodations may be requested. Notably, related conditions include breastfeeding, miscarriage, preeclampsia, and abortion.

The language has some employers in particularly red states concerned that they would be required to foot the bill for abortion. However, employers will not be required to pay for the procedure or cover any travel expenses for workers who are seeking abortions under the ruling. Rather, workers would be most likely to simply ask for time off to attend or recover from the procedure. The EEOC states that the decision to allow the ruling is based on the court’s long-standing interpretation of the same phrase used in Title VII, in which the previously noted accommodations would be accepted.

Under the Americans with Disabilities Act, while employees would not be terminated for taking time off for the procedure, the leave accommodation would not have to be paid time off.

NJ PWFA Regulations

The PWFA regulations go into place fully in June, after a two-month-long public comments period. However, a 17 state coalition of Republican attorney generals filed a lawsuit with the goal of stopping the implementation of the rule, due to its stance on abortion. The legal filing states that the federal rules allow workers time off and other accommodations to allow for abortion.

The lawsuit, which is led by the Attorney Generals in Tennessee and Arkansas, specifically targets the abortion-related component of the law, which the states believe goes beyond the scope of the original 2022 ruling, which, as noted, passed with support from both parties.

Attorney General Tim Griffin of Arkansas stated, “Under this radical interpretation of the PWFA, business owners will face federal lawsuits if they don’t accommodate employees’ abortions, even if those abortions are illegal under state law.”

The EEOC states that the new law does not place any obligation on employers or employer-sponsored health plans to cover abortion-related costs.

The states joining in the lawsuit include Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia.

There is no set timeframe in which a ruling on these challenges will take place. Other states may also pursue similar actions.

New Jersey is not involved in this lawsuit, but its final ruling will impact outcomes related to employee accommodation for abortion in New Jersey.

PWFA NJ – Help Is Available

PWFA regulations could implicate your employer depending on the way you are treated if you are pregnant or navigating a condition related to pregnancy. If you believe you have been discriminated against in any way, reach out to pregnancy discrimination lawyers, including our legal team at Hamilton Law Firm, for the immediate support you need. Our pregnancy discrimination lawyers in NJ provide exceptional hands-on support for clients as they navigate the challenges of fair treatment in the workplace.

If you believe you are experiencing any type of discrimination or an employer is violating the PWFA, contact Hamilton Law Firm now and speak to our discrimination lawyers in NJ for hands-on support.