Recent legislative developments at both the federal and state levels have extended workplace protections for pregnant individuals and new parents. The Equal Employment Opportunity Commission (“EEOC”) issued a final regulation clarifying the implementation of the Pregnant Workers Fairness Act (“PWFA”) and New York State introduced new paid prenatal leave measures in its 2024-2025 budget.
These developments require employers to evaluate their policies and practices around pregnancy, parental leave, and accommodations to ensure they are compliant with these changes.
EEOC’s Final Regulation on the PWFA
The EEOC issued a final rule (the “Final Rule”) on April 15, 2024, to implement and clarify the PWFA, which went into effect on June 27, 2023. The regulations take effect on June 18, 2024.
The Final Rule clarifies that under the PWFA, employers are prohibited from:
- Failing to provide reasonable accommodations to qualified employees or applicants, which includes avoiding unnecessary delays in doing so.
- Mandating employees to accept an accommodation that was not reached through an interactive process.
- Refusing employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation.
- Requiring employees to take paid or unpaid leave when another reasonable accommodation can be provided that would allow the employee to keep working.
- Penalizing or retaliating against employees or applicant for requesting or utilizing a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation).
The PWFA applies to employers with 15 or more employees and requires that they provide reasonable accommodations to an employee’s “known limitations related to pregnancy, childbirth, or related medical conditions,” unless such accommodation would “impose an undue hardship.”
Broad Coverage. The EEOC’s Final Rule has a broad definition of pregnancy, childbirth, and related medical conditions. Conditions related to pregnancy and childbirth include “current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatments, and the use of contraception) and labor and childbirth (including vaginal delivery and cesarean section).” “Related medical conditions” are “medical conditions that relate to pregnancy or childbirth…but need not be caused solely, originally, or substantially by pregnancy or childbirth.” Employers are required to accommodate these conditions regardless of the levels of severity of the conditions. They do not need to rise to the level of disability as applied under the American’s with Disabilities Act (“ADA”).
The Final Rule also addresses whether abortion falls under the PWFA. The Final Rule clarifies that employers do not have to provide pay for procedures or travel expenses, but they do have to accommodate the necessary time off for the procedure and recovery.
The Final Rule also establishes that to prove undue hardship, the employer must show the accommodation, caused “significant difficulty or expense” on business operations.
Predictable Assessments and Documentation Requests. Notably, the Final Rule lists specific “predictable assessments” related to pregnancy that should practically always be made by employers. Requesting documentation for such “predictable assessments” could be a violation of the PWFA. Items which never require documentation include: carrying or keeping water near and drinking as needed; allowing additional restroom breaks; providing seating for employees whose work requires standing; and allowing breaks for eating and drinking as needed.
The Final Rule further explains that employers may request supporting medical documentation from an individual requesting an accommodation only when it is reasonable. The Final Rule prohibits employers from seeking any supporting documentation when: (1) the limitation and need for a reasonable accommodation is obvious; (2) the employer already has sufficient information to determine a known limitation; (3) the request is one of the “predictable assessment” accommodations; (4) the request is for a pumping accommodation; and (5) employees without known limitations under the PWFA would receive the requested modification under the employer’s policies or practices without submitting supporting documentation.
The Final Rule further provides that a delay in providing an accommodation identified as predictable assessments will virtually always result in a finding of unnecessary delay and a violation of the PWFA. This differs from the ADA, which requires that employers engage in the interactive process.
Suspension of Essential Job Functions. The Final Rule also provides that employers may have to temporarily relieve an employee of her essential job functions as a form of accommodation. This is a significant departure from the ADA. An employee or applicant is still qualified even if: (1) they cannot perform one or more essential functions of the job on a “temporary” basis; (2) the worker could perform the essential functions “in the near future;” and (3) the inability to perform the essential function can be reasonably accommodated. This does not mean that the essential functions must always be suspended for 40 weeks or that the request must be automatically granted. The length of the suspension or whether it can be granted depends on what the employee requires and what would cause an undue hardship on the employer.
Since passage of the Rule and publication of the regulations, questions about its enforceability have arisen. Just last week, Republican attorneys general from 17 states filed a lawsuit challenging the new federal rule and its entitlement of workers to time off and other accommodations for abortions. Nonetheless, the PWFA is currently in effect and the regulations are scheduled to take effect in late June. Accordingly, employers need to educate themselves about the PWFA and take steps to comply with the guidance set forth in the regulations.
New York Paid Prenatal Leave
On April 20, 2024, New York lawmakers approved the state’s 2024-2025 budget, which amended New York Labor Law § 196-b to mandate paid sick leave for prenatal care. Effective January 1, 2025, New York employers, regardless of size, will be required to provide pregnant employees with up to 20 hours of paid sick time per year for prenatal care. New York State becomes the first state to offer paid prenatal leave.
The prenatal care sick leave accrues separate from, and in addition to, other mandatory leave requirements New York employers are required to provide their employees, as well as the existing twelve weeks of paid family leave.
The leave is to be used “for the health care services received by an employee during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy.” The paid prenatal personal leave may be taken in hour increments and must be paid at the employee’s regular rate of pay. The State may publish regulations or administrative guidance clarifying the amendment before it takes effect next year.
Implications for Employers
For employers, adherence to the new regulations is paramount in mitigating potential legal risks. To achieve this, employers must take proactive measures to review and align their policies and practices with the stipulations of the PWFA. New York employers must also align their policies with the new prenatal paid leave requirements.
Specifically, employers should do the following:
- Policy and Procedure Review: Employers are advised to conduct a thorough review of their existing policies and procedures to ensure they are in compliance with the requirements outlined in the above regulations. This includes revisiting policies related to pregnancy accommodations, nondiscrimination, and reasonable accommodations for pregnant employees. Any discrepancies should be addressed promptly.
- Training and Education: Employers need to ensure they educate and train managers and human resources staff about the new requirements and their implications for the workplace. This is crucial for effective implementation/compliance with the law.
- Stay Informed: Employers should remain up-to-date on further developments and updates regarding compliance obligations and regulations in the area. Changes in legislation or regulatory guidance may necessitate adjustments to existing policies and practices. Hinckley Allen will continue to publish alerts about these items.
