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What to Know About Finalized Pregnancy Rule That Requires Employers to Accommodate Abortion

pregnant woman holding her bump

Finalized rules released by the EEOC will require employers to accommodate those who need time away from work or other modifications in their workplace for an abortion procedure or recovery.

While the ruling will be controversial, here are some of the most important things employers should know about the final regulations for the Pregnant Worker Fairness Act.

Law Includes Abortion-Related Coverage 

Although the finalized regulation contains a spectrum of different scenarios, a list of situations that could fall within this definition includes pregnancy, infertility treatment, use of contraception, pregnancy termination (miscarriage, stillbirth, or abortion, pregnancy-related illnesses, lactation and any issues associated with it, and menstruation. 

In response to employer concerns regarding the abortion accommodation requirements, the EEOC stated that “nothing in the PWFA requires, or forbids, an employer to pay for health insurance benefits for an abortion.” 

While there is no exemption in the PWFA for employers based on religion, the EEOC encourages all religious employers facing a discrimination charge to assert their defense as quickly as possible. The agency will examine such matters on an individual basis.

What Employees Will Be “Qualified”?

The PWFA will only cover “qualified” employees and applicants. However, the final rule includes a broad definition of what is covered by the PWFA. This could include many workers. 

For example, a person is qualified if he or she can perform the functions essential to the position, with or without reasonable accommodations. Additionally, the person is qualified even if they are only temporarily unable to perform essential functions but can still perform them “in the future.”

What about Limitations?

According to the law, qualified employees and candidates are covered if they have a “known limitation” related to pregnancy, childbirth, or other medical conditions. This is defined as a known means that a worker or their representative has informed the employer of the restriction. The communication can be written or oral. No special words or formats are required.

A “limitation” is any mental or physical condition related to, caused by, or arising from pregnancy, childbirth, or other medical conditions. This includes minor or episodic problems or impediments. It could also include any actions needed to maintain a worker’s pregnant health and seek medical care for pregnancy, childbirth, or other related conditions.

Through PWFA, workers can seek and receive accommodations even though they have a healthy and normal pregnancy.

Possible Accommodations

Accommodations are modifications or adjustments which enable a candidate or employee to perform essential job functions. Accommodations could be made to the application process for a job or the actual job. 

Examples of accommodations that can be made are restructuring of the workforce, changes in schedule (like part-time employment and paid or unpaid leave), frequent breaks, modifying the workplace for accessibility, the ability to stand or sit, remote work, a reserved parking area, and adjusting workplace policies.

Of course, this list is by no means exhaustive. Other accommodations may be considered “reasonable” by the courts, so employers should work with employees to identify other possible accommodations.

Documentation can be Checked

You can ask the employee for proper documentation if you are concerned about a condition or limitation that is related to, affected by, or arising from pregnancy or childbirth.

Can Accommodations be Denied?

Employers may only refuse accommodation requests that would cause an “undue burden” to business operations. 

The factors in determining this are the duration of time that the employee will not be able to perform their work if there is already existing work to do and the frequency and nature of the function. 

Additionally, accommodations can also be denied if you have temporarily suspended the essential functions of other employees in similar positions, if there aren’t employees or third parties that can temporarily perform the essential function, and if the essential function cannot be delayed for any period.

Other Things to Note

The finalized rule will take effect on June 18, 2024. 

Although it comes into effect, the PWFA rule states that it does not replace any federal, state, or local laws protecting workers who are affected by pregnancy, childbirth, or other medical conditions.