The Equal Employment Opportunity Commission (EEOC) has issued final regulations and Interpretative Guidance to implement the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023. The PWFA requires that employers with at least 15 employees provide reasonable accommodations, absent undue hardship, to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The PWFA required the EEOC to publish final regulations by December 29, 2023. However, the EEOC did not issue final regulations until today, April 15, 2024.  The final regulations are slated to be published in the Federal Register on April 19, and will go into effect 60 days after publication.  The final regulations were issued after over 100,000 public comments were submitted in response to  the proposed regulations.

In the final regulations the EEOC clarifies, and in some instances, expands upon the circumstances in which an employer must reasonably accommodate an employee, absent undue hardship. The following is a list of some of the issues addressed in the 400+ pages of final regulations.

  • Like the proposed regulations, the final regulations cover a wide range of conditions related to pregnancy, including, fertility and infertility treatments, carpel tunnel, menstruation, postpartum depression, lactation (including both breastfeeding and pumping in the workplace), changes in hormone levels, abortion, miscarriage, stillbirth, and preeclampsia;
  • The final regulations significantly maintained the list of reasonable accommodation requests that will almost never impose an undue hardship, including permitting employees to carry or keep water nearby, take breaks as needed to eat and drink, and permitting work to be done while sitting instead of standing or vice versa.
  • The final regulations clarify the definition of a “qualified individual” as one who can perform the essential functions in the near future.  In the case of a pregnant employee, the presumption is the employee can perform the essential functions “in the near future,” within 40 weeks of suspension of the job function.  For conditions other than current pregnancy the regulations do not impose a 40-week limitation.  However, the final regulations clarify a request to indefinitely suspend an essential function is not “in the near future” so as to entitle an employee to an accommodation.
  • The final regulations further restrict the documentation and information an employer may require to support a request.
  • The final regulations state it is a best practice to provide an interim accommodation to an employee under the PWFA, and may mitigate against a claim of delay by an employee.
  • The final regulations also clarify there is no right to a reasonable accommodation under the PWFA based upon an individual’s association with someone else who may have a PWFA-covered limitation, or even if the individual themselves has a physical or mental limitation arising out of someone else’s pregnancy, childbirth or related medical condition.
  • The final regulations clarify that time for bonding or for childcare is not covered by the PWFA.
  • The final regulations also include extensive Interpretative Guidance as an Appendix, which address the major provisions of the PWFA and explain and illustrate how the final regulations will apply.  

Jackson Lewis attorneys are analyzing the substance of the final regulations and will publish a detailed report later this week designed to help employers understand the impact of these regulations. We also invite members of the employer community to join us for a complimentary webinar on May 10, 2024 at 1:00PM ET when we will discuss the final regulations, including how they differ from the proposed regulations and provide practical advice for complying with the PWFA. To register for the webinar, click this registration link.

If you have any questions about the PWFA or the implications of the regulations for your organization please contact a Jackson Lewis lawyer. As always, if you want to stay on top of changes and updates regarding the PWFA, subscribe to our Disability, Leave and Health Management Blog.

Leave laws, regulations, and ordinances continue to change in Minnesota. The city of Duluth, Minnesota, repealed its Earned Sick and Safe Time (ESST) ordinance effective Jan. 17, 2024. The Duluth ESST had guaranteed paid leave for qualifying employees working in the city since Jan. 1, 2020. Minnesota’s statewide ESST statute went into effect on Jan. 1, 2024. The Duluth City Councilors who moved for repeal of the ESST ordinance  stated that Minnesota’s state-wide ESST law rendered the city’s ordinance unnecessary.

The ESST ordinances in Minneapolis and St. Paul remain in effect. Employers and employees should note the differences between the local ordinances and Minnesota’s state law. Employers are also reminded of Minnesota’s new Paid Family and Medical Leave program, which begins providing benefits to certain employees working in Minnesota starting Jan. 1, 2026.

If you have questions about Minnesota’s state-wide mandatory leave laws, local leave laws in Minnesota, or the mandatory employee leave laws around the country, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Disability, Leave and Health Management team.

New Oregon law will change the administration of employee leaves for baby bonding and for a serious health condition.

Since 2005, Oregon’s Family Leave Act (OFLA) has provided employees protected absences from work for various family- and medical-related reasons. In 2019, the legislature created a new statutory scheme in Paid Leave Oregon (PLO). PLO established a family and medical leave insurance program to provide employees compensated time off from work to care for and bond with a new child, provide care for a family member who has a serious health condition, or recover from the employee’s own serious health condition. PLO benefits became available to employees in September 2023, and PLO benefits currently cover many employee absences that are simultaneously covered by OFLA. After July 1, 2024, Senate Bill 1515 will significantly change and potentially lessen the burdens on leave administration in Oregon.

The most significant change under the new law concerns leaves for baby bonding and for a serious health condition. Each type of leave will be covered exclusively by PLO (and, perhaps, the federal Family and Medical Leave Act). Employees seeking leave for either baby bonding or their own or a family member’s serious health condition are entitled to apply to the Oregon Employment Department for PLO benefits. The Employment Department is responsible for investigating eligibility, awarding benefits, and reporting its decision to the employer. After July 1, 2024, neither leave for baby bonding nor, with two exceptions, leave for a serious health condition is an OFLA-qualifying absence.

The types of absence that will remain covered by OFLA after July 1 include:

  • Sick child leave, including time off to care for a child with a serious health condition; 
  • Leave resulting from a disabling illness, injury, or condition related to an employee’s pregnancy or childbirth; and 
  • Leave to deal with the death of a family member.

The new law also impacts employees’ entitlement to use any employer-offered vacation or sick leave accruals while on PLO leave. Previously, employers could decide whether to allow employees to use their paid leave accruals to supplement or top off their PLO benefits. Beginning July 1, 2024, however, employees on PLO leave will be entitled to use any employer-offered paid leave accruals to supplement their PLO benefits up to the employees’ full wage replacement. Employers will retain discretion over whether to allow employees to use additional paid leave exceeding their full wage replacement.

The new law specifies that OFLA and PLO will not run concurrently. OFLA coverage is triggered only in some scenarios. First, if PLO does not apply, OFLA protections might apply. An employee requiring leave for a sick child or a death in the family, for example, would not be eligible for PLO benefits but may be entitled to OFLA benefits.

Second, if an employee exhausted their PLO entitlement, OFLA protections may provide additional (unpaid) leave entitlements. For example, an employee requiring leave for a sick child and who has already used 12 weeks of PLO benefits for a child with a serious health condition would be entitled to 12 weeks of OFLA coverage. Similarly, an employee who uses their full allotment of PLO benefits to accommodate a pregnancy disability would be entitled to an additional 12 weeks of OFLA leave for the same pregnancy-related disability.

The new law removes an existing cap on combined usage. Similarly, it removes the prospect of employees stacking leaves in a way that previously permitted use of up to 36 weeks of OFLA benefits.

The changes noted above are accompanied by additional, more technical changes in the law. Oregon employers should consider updating their policies and procedures to reflect the variety of changes brought about by Oregon’s new approach to family and medical leave entitlements.

If you have questions about your leave of absence policies or whether an individual employee’s absence is legally protected, please contact your Jackson Lewis lawyer. Jackson Lewis also offers a leave law map database that provides subscribers a detailed explanation of state and local leave laws around the country. The Leave & Accommodation Suite is developed and updated continually by our Disability, Leave & Health Management attorneys.

The Puerto Rico Secretary of Health issued Administrative Order No. 2024-589, declaring a public health emergency due to the prevalence of cases of dengue fever on the Island. Administrative Order No. 2024-589, signed on March 25, 2024, went into effect immediately and will last for 90 days or until June 23, 2024, unless its duration is extended.

Learn more here.

It has been almost exactly four years since the COVID-19 pandemic changed the American working landscape. Many of us followed the Centers for Disease Control and Prevention (CDC) through multiple changes and guidance, including from no mask, to mask, to no mask. On March 1, 2024, the CDC changed the isolation guidance for those with COVID-19.

Find out more here.

Congress improperly passed the Consolidated Appropriations Act of 2023, including the Pregnant Workers Fairness Act (PWFA), a federal court in Texas has ruled. State of Texas v. Department of Justice et al., No. 5:23-cv-00034 (N.D. Tex. Feb. 27, 2024). The court permanently enjoined the Equal Employment Opportunity Commission (EEOC) and Department of Justice from enforcing the PWFA against the State of Texas and its agencies.

Learn more here.

The North Carolina legislature added nondiscrimination and nonretaliation protections for employees who serve in the North Carolina Wing – Civil Air Patrol. Effective December 1, 2023, it is unlawful for any employer to discriminate or retaliate against any employee who is a member of the NC Wing Civil Air Patrol based on membership status or an authorized absence required to perform duties.

There are specific criteria defining an authorized absence.  An absence is authorized if: (1) the employee is required to perform duties for a State approved mission or US Air Force authorized mission, (2) the absence is no longer than seven consecutive scheduled working days for the employee, and (3) the total absences do not exceed fourteen scheduled working days in one calendar year. Unless an employee chooses to use paid leave which is otherwise available, an employer is not required to pay the employee during the leave. An employer can require that an employee requesting time off submit the employee’s mission order.

This new North Carolina law serves as a reminder to employers of the ever-evolving state and local leave laws around the country. If you have questions about your leave of absence policies or whether an individual employee’s absence is legally protected, please contact your Jackson Lewis lawyer. Jackson Lewis also offers a leave law map database that provides subscribers with a detailed explanation of state and local leave laws around the country. The Leave and Accommodation Suite is developed and updated continually by our Disability, Leave & Health Management attorneys. 

Continuing the wave of new rules and regulations related to paid leave in Minnesota, on January 8, 2024, the St. Paul Department of Human Rights and Equal Economic Opportunity (HREEO) issued guidance on its interpretation of St. Paul’s Earned Sick and Safe Time (ESST) Ordinance. St. Paul revised its ESST Ordinance in October 2023 to align with Minnesota’s ESST law, which went into effect January 1, 2024. The new guidance called “Final Rules” helps employers understand how the HREEO will enforce the recently revised St. Paul Ordinance.

Employers with employees in St. Paul should review the Final Reviews for guidance on a number of important topics including:

  • When time employees spend travelling constitutes time worked for purposes of accruing ESST.
  • Whether and when employees accrue and can use ESST for time spent on call.
  • Appropriate procedures for frontloading ESST in lieu of allowing employee to accrue ESST.
  • Using an existing PTO policy to satisfy ESST requirements.
  • Determining the hourly ESST rate for employees paid by salary, commission or piece rate.
  • Requesting documentation to support ESST leave requests.
  • How employers may comply with the Ordinance by maintaining a general PTO policy.

Under both the Minnesota law and St. Paul Ordinance, employees accrue 1 hour of ESST for every 30 hours worked. Employers, however, should pay careful attention to the distinctions between Minnesota’s ESST and St. Paul’s ESST.  There are several differences between the two laws, including for example, whether employers can allow employees to accrue ESST for fractions of an hour.

If you have questions about navigating compliance with the multiple paid leave laws in Minnesota and around the country, please contact a Jackson Lewis attorney.

The D.C. Department of Employment Services (DOES) has issued a new Paid Family Leave notice/poster. This notice must be posted in a “conspicuous place”, such as where the employer posts employment-related information, and must be provided to employees, on or before February 1, 2024.

The new notice, effective October, 2023, is identical to the previous notice, which was issued in October 2022, except that the maximum weekly benefit has increased. The new maximum weekly benefit is $1,118. From October 2022 to October 2023, the maximum weekly benefit was $1,049.  

Under the Universal Paid Leave Act, DOES is directed to adjust the maximum weekly benefit amount annually, to take effect on October 1 of each successive year. The maximum weekly benefit increases in proportion to the annual average increase, if any, in the Consumer Price Index for All Urban Consumers for the Washington-Baltimore metropolitan area, as published by the Bureau of Labor Statistics for the previous calendar year. The increase takes effect as long as the Chief Financial Officer of D.C. certifies that funds are sufficient in the Universal Paid Leave Fund each year to cover the maximum weekly benefit.

Employers should ensure that they post this notice and provide it to employees before February 1, if they haven’t already. Jackson Lewis attorneys are available to assist employers to comply with this complicated law.  

Philadelphia’s COVID-19 Supplemental Paid Sick Leave law expired on December 31, 2023. As a result, as of January 1, 2024, employers are no longer required to provide additional paid sick leave to employees when they are absent for certain COVID-19 reasons. 

That said, employers should be mindful that they may still be required to provide paid or unpaid sick leave to Philadelphia employees under the City’s Promoting Healthy Families and Workplaces law. Under that law, employees who work at least 40 hours a year in Philadelphia are entitled to earn one hour of sick leave for every 40 hours they work.  Employees earn up to 40 sick leave hours in a calendar year to use for an employee’s own health needs, to care for a family member, or for leave due to domestic abuse or sexual assault. You can learn more about Philadelphia’s Paid Sick Leave protections here.

Jackson Lewis attorneys continually monitor leave law developments in Pennsylvania and around the country. If you have questions about leave law compliance, please contact a Jackson Lewis attorney.