In April of this year, Bricker Graydon attorneys published an article describing how the Pregnant Worker’s Fairness Act (PWFA) would take effect on June 27, 2023, and will require employers with 15 or more employees to provide reasonable accommodations to employees and applicants for known limitations related to pregnancy, childbirth, and related medical conditions unless the accommodation would pose an undue hardship.

On August 8, 2023, the Equal Employment Opportunity Commission (EEOC) issued, for public inspection, a Notice of Proposed Rulemaking (NPRM) to implement the PWFA.

What does the NPRM say about the PWFA?

As discussed in the NPRM, the PWFA attempts to “fill gaps” in the current framework of federal legislation relating to pregnancy, childbirth, or related medical conditions. These acts currently include Title VII of the Civil Rights act of 1964 (Title VII), the Pregnancy Discrimination Act (which amended Title VII) (PDA), the Americans with Disabilities Act of 1990 (ADA), and the Family and Medical Leave Act of 1993 (FMLA).

Helpful to the interpretation and implementation of the PWFA, the NPRM includes definitions for terms like “qualified,” “essential function,” “interactive process,” “reasonable accommodation,” and “undue hardship.” In an effort to provide consistency across the current federal legislative framework, the NPRM adopts some definitions from the ADA.  For example, the PWFA adopts the ADA’s definition of “qualified.” However, unlike the ADA, the PWFA allows an employee to be considered “qualified” if their inability to perform their job duties is “temporary,” the worker would be able to perform the essential functions “in the near future,” and the inability could be “reasonably accommodated.” Notably, the NPRM defines “in the near future” as “generally 40 weeks.”

Additionally, the NPRM includes a definition of “reasonable accommodation.” The definition of “reasonable accommodation” is similar to the ADA’s definition and provides a non-exhaustive list of possible accommodations available under the PWFA.

Those examples include the following enumerated accommodations:

• Frequent breaks
• Sitting/standing
• Schedule changes, part-time work, and paid and unpaid leave
• Telework
• Parking
• Light duty
• Making existing facilities accessible or modifying the work environment
• Job restructuring
• Temporarily suspending one or more essential function
• Acquiring or modifying equipment, uniforms, or devices
• Adjusting or modifying examinations or policies

The remainder of the NPRM addresses other concerns often presented by employers such as:

• When or if they can request medical documentation
• What may be a reasonable accommodation
• How employees may request accommodations
• How the PWFA relates to other laws
• Remedies and enforcement
• Retaliation and coercion prohibitions.

What should institutions of higher education do now?

Continue to examine your institution’s policies and practices, provide training to your employees, and watch for legal developments that may require changes. Later this year, possibly as soon as October, we expect the Title IX Regulations to be issued in final form, which should include several additional changes to the regulations regarding parental status, pregnancy, and related conditions.

Additionally, consider whether your institution may wish to provide a comment regarding the proposed regulations. The public will have 60 days to provide comments to the NPRM after the NPRM’s publication to the Federal Register, which is expected to occur on August 11, 2023. Comments may be submitted via www.regulations.gov and will be available for the public to review.  

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