The EEOC has released a Final Rule regarding the “Pregnant Workers’ Fairness Act” (PWFA). The PWFA provides accommodations for employees who have “known limitations” relating to pregnancy, childbirth or related medical conditions.  This includes accommodations for employees with physical or mental conditions arising out of the decision to have an abortion. This makes it the first policy of its type to explicitly address accommodations for pregnancy and abortion. Accommodations under this Final Rule can be used for either an abortion procedure or recovery.

Employees will be eligible for these accommodations if they can perform the essential functions of their job (with or without a reasonable accommodation) OR their inability to perform the essential functions of the job is only temporary and will be restored “in the near future.” The rule includes a list of potential accommodations that could be provided to the employee, most of which mirror potential ADAAA accommodations under federal disability law:

- A modification in job structure;

- Flexibility in scheduling shifts;

- Allowances for more frequent breaks;

- Equipment changes to make performance less stressful on the employee’s body;

- Acceptance of remote work when physical presence is not required;

- Altering the terms and conditions of the position temporarily so an employee who cannot perform these functions is not dismissed; and

- Any other accommodations considered by the EEOC to be “reasonable.”

Employers may be able to prevent the employee’s use of leave under this Final Rule if they can show that granting such accommodation would place an “undue hardship” on the business. Undue hardship is established on a case-by-case basis, but can generally be established using some of the below factors:

- The length of time the employee will be unable to perform the essential functions of the job is determined to be unreasonably long;

- If the amount or type of work the employee is required to do means that the loss of this employee will severely hamper business operations;

- The employer has provided similar accommodations (including in length) to other employees with disabilities.

It is important to note that the EEOC explicitly states that accommodations do not include providing health insurance benefits for abortions. The EEOC also states that it will consider exemptions to these accommodations due to religious beliefs on a case-by-case basis.

The Final Rule will be effective beginning June 18, 2024. Employers should review their handbooks to ensure they are in compliance with this new rule.

You can read the entire Final Rule HERE.