Key Takeaways:

• On August 7, 2023, the U.S. Equal Employment Opportunity Commission (the “EEOC” or the “Commission”) released its proposed regulations implementing the Pregnant Workers Fairness Act (“PWFA” or “the Act”), which was signed into law by President Biden on December 29, 2022. The PWFA requires covered employers to provide employees and job applicants with pregnancy or childbirth related limitations with “reasonable accommodations” to perform the essential functions of their jobs.
• The EEOC’s proposed regulations provide guidance regarding key aspects of the PWFA including the Commission’s interpretation of key terms, a non-exhaustive list of conditions the EEOC believes are covered by the Act, and examples of “reasonable accommodations” that the Commission believes would not constitute an undue hardship to provide in most circumstances.
• The EEOC will be accepting public comments on the proposed regulations from Friday, August 11, 2023 until October 10, 2023. Members of the public may comment on the proposed regulations via https://www.regulations.gov/. The EEOC then has until December 29, 2023 to issue final regulations. The EEOC will then set a date by which covered employers must comply with the PWFA.

On August 7, 2023, the EEOC issued a Notice of Proposed Rulemaking containing its proposed regulations for implementing the PWFA. The PWFA was signed into law by President Biden on December 29, 2022 and went into effect on June 27, 2023. (Our alert on the enactment of the PWFA can be found here.) The PWFA requires all employers with 15 or more employees—including state-run employers, employment agencies, and labor unions—to provide reasonable accommodations for “known limitations” related to pregnancy, childbirth, or “related medical conditions” unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s business.

The PWFA explicitly tasked the EEOC with issuing regulations within one year of the Act’s enactment to provide guidance to covered employers regarding compliance with and enforcement of the Act. Key provisions from the proposed regulations released by the EEOC include:

• Related Medical Conditions. The EEOC explains that “Pregnancy, childbirth, or related medical conditions” is a phrase used in Title VII (42 U.S.C. 2000e(k)) and has the same broad meaning in the PWFA as in that statute. According to the EEOC, pregnancy, childbirth, or related medical conditions include: current, past or potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions. The Commission also states that the PWFA covers existing conditions that are exacerbated by, and therefore related to, pregnancy or childbirth, such as high blood pressure, anxiety, or carpal tunnel syndrome. The Commission emphasizes, however, that these conditions should not be considered in isolation to determine whether they are covered by the PWFA; rather, the condition must relate to the employee’s pregnancy or childbirth.
• Known Limitations. Employers are only required to provide accommodations under the PWFA for “known limitations.” The Commission explains that “known” means the employee or applicant has actually communicated to the employer that she has a limitation arising out of pregnancy, childbirth, or a related condition. “Limitation” includes any physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The physical or mental condition that is the limitation may be a modest, minor, and/or episodic impediment or problem. The physical or mental condition also may be that a worker affected by pregnancy, childbirth, or related medical conditions has a need or problem related to maintaining their health or the health of their pregnancy. The definition also includes when a worker is seeking health care related to pregnancy, childbirth, or a related medical condition itself. The EEOC notes that there is no threshold of severity under the PWFA for the condition that may lead an employee to seek a PWFA accommodation.
• Reasonable Accommodations. The EEOC confirms that “reasonable accommodation” has the same definition under the PWFA as under the Americans with Disabilities Act (“ADA”). Also mirroring the requirements of the ADA, the PWFA requires covered employers to engage in an interactive process with workers who request an accommodation for a pregnancy or childbirth related limitation. The Commission also provides a non-exhaustive list of examples of the types of reasonable accommodations a worker may seek under the PWFA, which include: extra time for or more frequent bathroom, food and drink breaks; drinking water on the job; sitting or standing as necessary; telework; job restructuring; offering parking; transition to light duty; paid and/or unpaid leave; and even temporarily suspending certain essential job requirements where the worker could resume those duties in the “near future.” The Commission defines “near future” to mean “generally forty weeks,” or the length of a full-term pregnancy. Although leave from work may be an appropriate accommodation in certain circumstances, the Commission makes clear that employers may not require employees who have experienced pregnancy, childbirth, or related conditions to take leave – even if that employee’s ability to do their job is limited – if they can reasonably accommodate the employee in another way.
• Temporary Nature of Pregnancy or Childbirth Related Conditions. The Commission acknowledges the temporary nature of pregnancy, childbirth and some related medical conditions and how that temporary nature impacts its proposed implementation of the PWFA. For example, per the EEOC, an individual may be considered a “qualified” applicant or employee even if they cannot perform the essential functions of their job, if their inability to perform essential functions is temporary and could be resolved in the “near future” (approximately 40 weeks), and the person could be reasonably accommodated during the period of time that they cannot perform the essential functions. The Commission also interprets the PWFA to require employers to provide accommodations for temporary pre-pregnancy limitations such as infertility and post-pregnancy limitations such as unforeseen health problems arising from pregnancy.
• “Predictable Assessments” of Undue Hardship. The EEOC confirms that the definition of “undue hardship” under the PWFA is the same as that in the ADA: significant difficulty or expense incurred by a covered entity. The EEOC then outlines some factors to be considered when determining if undue hardship exists. These factors include: (i) the nature and net cost of the accommodation needed under the PWFA; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources; (iii) the overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities; (iv) the type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and (v) the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business. The Commission also identifies a limited number of modifications that will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by an employee due to pregnancy, which it refers to as “predictable assessments.” These predictable modifications are: (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.
• Documentation for Accommodations. Medical documentation for PWFA accommodations may only be required by an employer when it is reasonable under the circumstances. Medical documentation is not necessary for those accommodations the EEOC has identified as “predictable assessments,” as described above. These accommodations are expected to be provided in virtually all circumstances without medical documentation.
• Compliance & Damages: As with other federal anti-discrimination laws, employers will be required to post notices in conspicuous places describing applicable PWFA provisions. Employers are prohibited from retaliating against employees for exercising rights under the PWFA, and from coercing employees to forgo rights under the PWFA. The PWFA provides for recovery of pecuniary and non-pecuniary damages, including compensatory and punitive damages for violations of the PWFA.

The proposed regulations will be open for public comment from August 11, 2023 until October 10, 2023. Members of the public may comment on the proposed regulations via https://www.regulations.gov/. Following the comment period, the EEOC has until December 29, 2023 to issue final regulations and provide a date by which covered entities must comply with the PWFA. It is recommended that employers review the proposed federal requirements now to ensure that they make the necessary adjustments to their policies as required by the Commission’s proposed regulations prior to the EEOC’s to-be-determined deadline for compliance.