Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued proposed regulations implementing the Pregnant Workers Fairness Act (“PWFA” or the “Act”). The public has until October 10 to comment on the EEOC’s proposed regulations.
Background: The Pregnant Workers Fairness Act
The PWFA, which went into effect in June 2023, is a federal law that requires workplace accommodations for pregnant workers. Specifically, the Act requires employers with 15 or more employees to provide a reasonable accommodation to workers for known limitations related to pregnancy, childbirth, or related medical conditions. The Act does not specify the types of reasonable accommodations that may be required. Rather, it instructs the EEOC to issue regulations to implement its provisions, including specific examples of reasonable accommodations.
The EEOC’s Proposed Regulations
On August 7, further to the Act’s instructions, the EEOC published proposed regulations implementing the PWFA. The proposed regulations explain how the EEOC proposes to interpret the PWFA and provides numerous examples of possible reasonable accommodations. The regulations are contained in a 275-page proposed rule that, among other things, discusses the overall importance of the PWFA, describes numerous hypothetical employment scenarios, and calculates economic impacts of the proposed regulations. Thankfully, the EEOC also published a summary of the proposed rule’s key provisions.
Although the proposed rule covers a wide variety of topics, several important takeaways for practitioners follow:
“Known limitation.” The PWFA mandates the accommodation of “known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.” The EEOC proposes that “known” in this context means the employee or applicant communicated the limitation to the employer. As for “limitation,” the EEOC proposes that it includes even a “modest, minor, and/or episodic impediment or problem.” “Limitation” can also include a need or problem “related to maintaining the[] [employee’s] health or the health of their pregnancy” or “seeking health care related to pregnancy, childbirth, or a related medical condition itself.”
“Related to pregnancy, childbirth, or related medical conditions.” The proposed regulations define “pregnancy” and “childbirth” as including, but not limited to, “current pregnancy; past pregnancy; potential or intended pregnancy; labor; and childbirth.” The EEOC also provides a non-exhaustive list of “related medical conditions,” including, among others, “termination of pregnancy, including via miscarriage, stillbirth, or abortion,” “fertility treatment,” “anxiety,” “depression,” “menstrual cycles,” “use of birth control” and “lactation and conditions related to lactation.”
“Qualified” employees. Like many other employment laws, the PWFA protects only employees that are “qualified” for their jobs. The proposed regulations define “qualified” in two ways. First, an employee is “qualified” if she can perform the essential functions of her job with or without a reasonable accommodation. Second, an employee is “qualified” even if she cannot perform one or more essential functions of the job, provided that her inability is temporary, that she can perform the essential function in the “near future” (i.e., within 40 weeks), and her inability can be reasonably accommodated by the employer.
“Reasonable accommodation.” Like the Americans with Disabilities Act (“ADA”), the PWFA defines “reasonable accommodation” as a change in the work environment or how things are usually done. The proposed rule provides specific examples of possible reasonable accommodations under the PWFA, including, among others: frequent breaks, sitting/standing, schedule changes, part-time work, paid and unpaid leave, telework, light duty, modification of facilities, job restructuring, and temporarily suspending one or more essential functions.
The proposed rule also identifies some simple modifications that will be considered reasonable in virtually all cases, including: (1) allowing an employee to carry water and drink, as needed, in the employee’s work area; (2) allowing an employee additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, and (4) allowing an employee breaks, as needed, to eat and drink.
Requesting supporting documentation. Under the proposed rule, an employer is not required to seek supporting documentation from a worker who seeks an accommodation under the PWFA. If an employer decides to require supporting documentation, it is only permitted to do so if it is reasonable under the circumstances for the employer to determine whether to grant the accommodation.
Conclusion and Next Steps
Instructions for providing public comment before the October 10 deadline appear on the first page of the proposed rule.
The proposed regulations are remarkable in that they encompass a broad range of potential limitations and require more from employers than similar laws like the ADA. For example, employers must accommodate employees even if they cannot perform an essential function of their jobs, and may be required to suspend essential functions where appropriate.
Employers should review their pregnancy accommodation policies and procedures with counsel to ensure that they comply with the PWFA and identify changes to be made if the regulations become final.
