What You Need To Know

• The Equal Employment Opportunity Commission’s regulations covering the scope of the Pregnant Workers Fairness Act took effect on June 18. The law requires employers to provide reasonable accommodations for pregnant workers or applicants, among other requirements described below.
• New York recently became the first state to enact a paid prenatal leave law, which provides up to 20 hours of paid leave per 52-week period for pregnancy-related care.
• New York employers are also required to provide a paid 30-minute break for lactating employees to express milk effective June 19.

EEOC Publishes Final Regulations on the Pregnant Workers Fairness Act.

On June 18, 2024, the Equal Employment Opportunity Commission’s (EEOC) final regulations clarifying the scope of the Pregnant Workers Fairness Act (PWFA) took effect. By way of background, the PWFA requires employers with 15 or more employees to make reasonable accommodations for (i) known limitations of employees (and applicants) or (ii) physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Below are five key takeaways employers should be aware of:

1. Covered Conditions Are Defined Broadly

The conditions that qualify for accommodations under the PWFA extend to past pregnancy-related disabilities. They include, but are not limited to:

• Current, past, and potential pregnancies
• Lactation (including breastfeeding and pumping, low milk supply, and plugged ducts)
• Menstruation
• Use of contraception
• Infertility and fertility treatments
• Miscarriage
• Stillbirth
• Having or choosing not to have an abortion (this is currently subject to legal challenge)
• Physical and mental conditions originating during pregnancy as well as pre-existing conditions that are exacerbated by pregnancy or childbirth

The conditions from which employees suffer do not have to be severe or ongoing. The EEOC makes clear that conditions that are “modest, minor or episodic” are covered under the PWFA.

2. “Reasonable Accommodations” Are Similar to the ADA

The term “reasonable accommodation” has the same meaning under the PWFA as it does under the Americans with Disabilities Act (ADA). Employers are therefore required to consider similar modifications or adjustments to the job application process or work environment (e.g., more frequent breaks, schedule changes or reduction in hours, remote work, worksite modifications) when determining whether a requested accommodation is reasonable.

3. Temporary Suspension of Essential Functions

Employers may need to temporarily suspend the “essential functions of the job” requirement when determining whether an employee is qualified under the PWFA. Unlike under the ADA, which requires an accommodation for an employee only if they can perform the essential functions of the job with or without an accommodation, under the PWFA, an employee who is unable to perform the essential functions of the job can still be “qualified” if the inability to perform one or more of the essential functions is for (i) a temporary period; (ii) the employee could perform the essential functions “in the near future,” and (iii) the inability to perform the essential functions can be reasonably accommodated.

While “temporary period” is not defined, it can include a time period that extends beyond the near future. Additionally, the determination of whether an essential function can be performed in the near future must be determined on a case-by-case basis. The rule presumes, however, that the average length of a pregnancy—40 weeks—is within the “near future.”

4. Undue Hardship

As with the ADA, employers are not required to make a reasonable accommodation to a qualified employee (or applicant) if doing so causes an “undue hardship.” The PWFA adopts the ADA’s definition of an undue hardship: The accommodation must result in “significant difficulty or expense” for the employer. There are certain accommodations that will be reasonable in almost all cases, including taking extra restroom breaks and having the ability to sit or stand as needed.

5. Requesting Supporting Documentation

Employers may request medical documentation from an employee to support an accommodation only when it is “reasonable under the circumstances.” Employers may only request documentation—and the employee can provide documentation from any health care provider—that is sufficient to (i) confirm the physical or mental condition; (ii) confirm the condition is related to, affected by, or arises out of pregnancy, childbirth, or related medical conditions; and (iii) describe the accommodation needed due to the limitation.

There are certain circumstances, however, in which employers may not ask for documentation. Those are:

• When the condition requiring an accommodation is “obvious”
• When the employer already has sufficient information that the employee has a condition and needs an accommodation due to that condition
• When an employee requests an accommodation that is a “predictable assessment” (e.g., extra restroom breaks)
• When the accommodation is related to lactation
• When the requested accommodation is available to other employees without supporting documentation

New York Becomes First State to Require Paid Leave for Prenatal Care

New York recently became the first state to enact a paid prenatal leave requirement, and beginning January 1, 2025, employers must provide qualifying employees with up to 20 hours of paid leave per 52-week period that can be used for healthcare services received during pregnancy or related to such pregnancy. Employees may take leave for physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider.

Employees are permitted to use this prenatal leave in one-hour increments, and they must be paid at their regular rate of compensation or minimum wage, whichever is greater. Employers, however, are not required to pay out unused prenatal leave.

The law is silent on one key point. The law does not contain an accrual requirement, stating only that all employees must be provided at least 20 hours of prenatal leave per year. Therefore, employers should provide prenatal leave to employees upon commencement of employment. Below are a few other points employers should know:

• An employee’s use of prenatal leave is not considered hours worked, including for overtime purposes.
• The 20-hour requirement of paid prenatal leave is separate from the paid sick leave that employers must provide to qualifying employees.
• Employers cannot require employees to disclose health information as a condition of using prenatal leave.
• The prenatal leave law does not create a private cause of action. Employees may instead file a complaint with the New York State Department of Labor.

NY Employers Must Provide 30-Minute Lactation Accommodation

Effective June 19, 2024, New York employers are required to provide lactating employees a paid 30-minute break to express breast milk for their child. Under the amended New York Labor Law § 206-c, employers must provide qualifying employees with up to 30 minutes of paid break time “each time such employee has reasonable need to express breast milk for up to three years following childbirth.” The required lactation break time is in addition to any other paid or unpaid break time already offered to employees, like a meal period. However, if employees need more than 30 minutes to express breast milk, then employers may require employees to use existing paid break time or meal time.

Next Steps

Employers should review their leave and accommodation policies and procedures to ensure compliance with the new federal and state laws and regulations.