Monday, August 7, 2023: U.S. EEOC Announced Proposed Regulations to Implement PWFA
Comments Due by October 10
Agency Posed 13 “Directed Questions” for Comments
The Equal Employment Opportunity Commission (“EEOC”) announced its Notice of Proposed Rulemaking (“NPRM”) on regulations to implement the “Pregnant Workers Fairness Act” (“PWFA”). The PWFA requires a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity. Following up on Monday’s announcement, the Commission published the 81-page NPRM in the Federal Register on Friday, August 11. The EEOC also provided an “Executive Summary” of the NPRM’s key provisions on its website and in the preamble to the NPRM.
Comments on the proposal are due by Tuesday, October 10, 2023, and you can submit them here. Note that in addition to the ability of members of the public to offer the Commission general comments, the EEOC is specifically seeking comments on a list of 13 “Directed Questions.”
“We encourage the public to provide meaningful feedback about how the proposal would impact workplaces and ways to assist employers and workers in understanding the law,” Commission Chair Charlotte A. Burrows stated in the announcement.
The PWFA law took effect June 27, 2023. The following day, the EEOC submitted its proposed regulations to implement the new statute to the White House Office of Management and Budget for review. The statute provides that the EEOC must issue finalized regulations to implement it by December 29, 2023. For additional background, see our stories here, here, and here.
What’s in the NPRM?
The PWFA is closely modeled after Title I of the Americans With Disabilities Act of 1990 (“ADA”) and also incorporates various provisions of Title VII of the Civil Rights Act of 1964 (“Title VII”), as modified by the Pregnancy Discrimination Act of 1978 (“PDA”). It also addresses limitations in coverage under Title VII, the ADA, and the Family and Medical Leave Act (“FMLA”).
The PWFA, for the first time, requires accommodations for pregnant employees due solely to their pregnancy unrelated to an underlying medical condition. The PWFA requires employers with 15 or more employees to provide reasonable accommodations unless it would pose an undue hardship to the employer. The legislation includes protections not already codified in the ADA or the PDA. Specifically, the PWFA allows pregnant employees to continue working by requiring employers to provide accommodations such as additional bathroom breaks, light duty, or a stool to sit on if an employee stands all day. The measure also prohibits employers from denying employment opportunities to women based on their need for reasonable accommodations due to childbirth or related medical conditions.
Accordingly, the PWFA NPRM incorporates many elements of the EEOC’s existing regulations regarding the ADA, Title VII, and the PDA. For example, the proposal adopts the ADA’s provisions as to reasonable accommodation, undue hardship, and the interactive process. The NPRM also includes a non-exhaustive list of examples of how employers might comply with the various PWFA provisions.
In addition, the preamble to the NPRM contains a Section-By-Section analysis of the proposed regulations.
Commission Vote on Proposal
The EEOC’s press release on the proposal notes that “[t]he NPRM was approved by majority vote of the Commission on August 1, 2023.” Politico reported Tuesday that “[t]he EEOC’s two Democratic commissioners and one of its Republican appointees voted to advance the regulations, while GOP Commissioner Keith Sonderling abstained.” Commission Chair Burrows (Democrat), Vice Chair Jocelyn Samuels (Democrat), and Commissioner Andrea R. Lucas (Republican) were all quoted in the press release, but Commissioner Sonderling was not. [Note that EEOC’s newest member – Kalpana Kotagal, the third Democrat on the five-member, bipartisan Commission – was not sworn in until Wednesday, August 9.]
Abortion Coverage Controversy
The text of the PWFA does not mention abortion. However, the NPRM includes “having or choosing not to have an abortion” among the non-exhaustive list of examples of pregnancy, childbirth, or related medical conditions that the Commission has concluded generally fall within the statutory definition. In footnote 51 of the NPRM, the EEOC explains this inclusion by citing its own Enforcement Guidance on Pregnancy Discrimination as well as numerous federal court decisions on existing federal employment laws.
On Tuesday, U.S. Senator Bill Cassidy (R-LA), Ranking Member of the Senate Health, Education, Labor, and Pensions Committee, issued a statement accusing the agency of “go[ing] rogue” and “disregarding legislative text and injecting abortion politics” into the proposed regulations.
According to Cassidy, “[t]he legislation originally passed with overwhelmingly bipartisan support with the intent that abortion would not be included.”