Employers should be aware of new legal requirements on the horizon related to employee pregnancy.
In late 2022, the Pregnant Workers Fairness Act (“PWFA”) became law with the purpose of providing reasonable workplace accommodations to employees impacted by pregnancy, childbirth, or related medical conditions.
On April 15, 2024, the Equal Employment Opportunity Commission issued its final regulations for the law and the final regulations took effect on June 18, 2024. These final regulations establish a broad interpretation of the protections created for qualifying employees under the law.
Under the PWFA, “pregnancy, childbirth, and related medical conditions” include a current pregnancy, past pregnancy, potential or intended pregnancy, labor and childbirth. “Potential or intended pregnancy” can include infertility, fertility treatment, and the use of contraception. Examples of “related medical conditions” can include termination of pregnancy through miscarriage, stillbirth, or abortion, ectopic pregnancy, gestational diabetes, preeclampsia, high blood pressure, anxiety and depression. This is far from an all-inclusive list of the potential conditions that would qualify for accommodations under the EEOC’s final rule.
The EEOC intends the PWFA to cover conditions that do not rise to the level of disability.
An employee may qualify for accommodations under the PWFA even if the employee cannot perform the essential functions of their position, as long as the employee’s inability to perform job functions is temporary, the function can be performed in the near future, and the inability to perform the essential function can be reasonably accommodated.
The EEOC provides examples of reasonable accommodations under the PWFA. These can include part-time or modified work schedules, breaks for use of the restroom, drinking, eating and/or resting, modifying equipment uniforms or devices, telework, remote work or change of work site, and even temporarily suspending one or more essential functions. For lactation specifically, an employer should be prepared to permit the employee to nurse during work hours where the child is in “close proximity” to the employee.
Employers in New York should be aware that Governor Hochul signed additional protections into law related to the PWFA. Effective today, June 19, 2024, New York employers must provide a 30 minute paid break each time an employee has “a reasonable need to express breast milk.” Should the employee need more than 30 minutes for the session, the employee may use existing paid break time or meal time. This New York expansion entitles employees to multiple paid lactation breaks each day. This augments the Nursing Mothers in the Workplace Act that became law in New York in 2007. Employers are already required to provide either reasonable unpaid break time or allow employees to use paid rest periods or meal breaks to express milk for up to three years following the birth of a child.
Effective January 1, 2025, New York employers will also be required to provide employees with 20 hours of paid prenatal leave during any 52 week calendar period.
Employers should work with their legal counsel to review the PWFA, the resulting EEOC rules, and New York law changes and start taking steps immediately to prepare for accommodating qualifying employees seeking accommodations.