EEOC Finalizes Rule to Require Employers to Accommodate both Applicants and Workers for an abortion procedure or recovery.
On April 15, 2024, the EEOC finalized a rule that will require employees to accommodate workers who may need time off or other workplace modifications for an abortion procedure or recovery. This development will soon impact the federal pregnancy accommodation law (PWFA) that took effect in 2023.
With regards to the PWFA, an employer with at least 15 employees to consider employee and applicant accommodation requests related to pregnancy, childbirth, or related medical conditions the same way they consider accommodation related to disabilities under the ADA.
JD Supra reported that they reviewed the entire EEOC Release (408 pages!) and was able to summarize the eight biggest developments - Happy reading!
1. Broad Coverage Includes Abortion-Related Accommodations
The finalized rule contains a very broad definition of “pregnancy, childbirth or related medical conditions.” A non-exhaustive list of possible circumstances that fall within the broad definition includes:
The finalized rule is bound to be controversial given that it expressly requires employers to consider abortion accommodations. According to Bloomberg Law, over 95% of the 100,000+ comments offered by the general public after reviewing the draft rules released in October related to abortion.
In response to employer concerns about the abortion accommodation requirement, the EEOC noted that “nothing in the PWFA requires, or forbids, an employer to pay for health insurance benefits for an abortion.” The Commission expects the most common requests to be for time off to attend an abortion-related appointment or for recovery. But given the debate over including abortion-related accommodations, we expect this aspect of the regulations to soon be tested in court.
While the PWFA contains no express exemption for religious-based employers, the EEOC encourages any religious employer facing a charge of discrimination under this law to raise a defense as soon as possible. The agency says it will consider such matters on a case-by-case basis.
2. Many Employees Will Be Deemed “Qualified” For Protection
Only “qualified” applicants and employees will be covered under the PWFA – but the final rule provides a sweeping definition that may encompass many workers as covered under the PWFA. As illustrated below, the PWFA is much broader than the ADA, since it includes terms like “temporary” and “in the near future,” which may be more challenging for employers to determine when handling requests.
3. “Limitations” Don’t Have to Be Very Limiting to Be Covered
The law says that qualified employees and applicants are covered by the law if they have “known limitations” that relate to pregnancy, childbirth, or related medical conditions. This phrase is defined as follows:
In other words, workers with healthy and normal pregnancies could seek and receive accommodations under the PWFA. Unlike the ADA, there’s no threshold for the severity of the physical or mental conditions for accommodation requests.
4. Rule Includes List of Possible Accommodations
Accommodations are simply modifications or adjustments that would enable an applicant or employee to perform the essential functions of the job. They could apply to the job application process or the job itself. The rule provides a long list of potential accommodations employers will need to consider, including:
This list is not exhaustive. The EEOC and courts may consider other accommodations to be “reasonable,” so employers will want to work with the employee during the interactive process to review these options but to also identify other possible accommodations.
5. You Can Check Documentation in Certain Cases
If you have reasonable concerns about whether a physical or mental condition or limitation is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” you may request information from the employee regarding the connection.
When requesting documentation, the EEOC expects you to follow best “interactive process” practices. This is a method borrowed from the ADA, generally calling for “a discussion or two-way communication between an employer and an employee or applicant to identify a reasonable accommodation.” The rule also requires you to be reasonable in your requests for documentation and not seek more information than is required in order to make a proper determination.
6. Rule Clarifies When You Can Deny Accommodation Requests
Employers can only deny accommodation requests if they would impose an “undue hardship” on business operations. In general, an accommodation would create an undue hardship if it would cause significant difficulty or expense for operations.
Under the final rule, the following factors may be considered when determining whether temporarily suspending an essential function of the job will cause an undue hardship:
7. Rule Slated to Take Effect in June
The finalized rule is slated to be published in the Federal Register this coming Friday (April 19) and take effect 60 days later – on June 18, 2024. There is a chance that the effective date could be delayed or set aside completely by court action, so stay tuned for more information.
8. Don’t Forget Other Laws
The rule confirms that the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. At least 30 states and five cities require certain employers to provide some form of accommodations to pregnant employees. If you operate in one of these locations, your practices may not need to change much, or at all.
What Should You Do?
You have a few months to prepare for these rules to take effect. To position your organization most effectively, you should consider the following steps:
Source(s): JD Supra, received on April 18, 2024.