The Pregnant Workers Fairness Act (PWFA), which was signed into law on December 29, 2022, went into effect on June 27, 2023. The EEOC has started to accept PWFA charges and has issued guidance and resources to help employers comply with the expanded requirements. On August 11, 2023, the EEOC also published a Proposed Rule to implement the PWFA, which outlines the agency’s interpretation of the PWFA, and includes specific examples of possible reasonable accommodations. Public comments concerning the Proposed Rule can be submitted until October 10, 2023.

In general, the PWFA requires employers with 15 or more employees to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations would cause the employer undue hardship. The PWFA seeks to “fill the gaps” in legal protections afforded to workers under existing federal laws, such as Title VII, the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act of 1993 (FMLA). While existing federal laws protect employees affected by pregnancy or childbirth, the PWFA is the first to create an affirmative reasonable accommodation right for such workers.

The EEOC’s PWFA Guidance

As detailed below, the EEOC has published a Proposed Rule containing regulations to implement the PWFA, which are open to public comment until October 10, 2023. While this Proposed Rule is under consideration, the EEOC has also issued guidance entitled, “What You Should Know about the Pregnant Workers Fairness Act.” This guidance provides additional information regarding the following:

1. Scope of Charges: The EEOC will analyze charges regarding accommodations for workers affected by pregnancy, childbirth, or related medical conditions under the PWFA if the violation occurred after June 27, 2023.
2. Examples of Possible Reasonable Accommodations for Workers Covered by the PWFA:
   • the ability to sit or drink water;
   • receive closer parking;
   • have flexible hours;
   • receive appropriately sized uniforms and safety apparel;
   • receive additional break time to use the bathroom, eat, and rest;
   • take leave or time off to recover from childbirth; and
   • be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
3. Examples of Prohibited Actions for Employers:
   • requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
   • denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
   • requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
   • retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
   • interfering with any individual’s rights under the PWFA.
4. Information Regarding Other Laws that Apply to Workers Affected by Pregnancy, Childbirth, or Related Medical Conditions:
   • Title VII (enforced by the EEOC);
   • The ADA (enforced by the EEOC);
   • The FMLA (enforced by the U.S. Department of Labor); and
   • The PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act) (enforced by the U.S. Department of Labor), which broadens workplace protections for employees to express breast milk at work, as we recently reported here.

The EEOC’s PWFA Resources

The EEOC has also released the following educational resources regarding the PWFA:

1. Tips for Workers to Request Accommodations: This provides a step-by-step guide for employees, including what to do if an employer declines an accommodation request.
2. “Know Your Rights” Video Series: Short videos providing PWFA information on the U.S. Department of Labor’s YouTube Channel.
3. Revised “Know Your Rights” Poster: Required to be posted in most workplaces.
4. Infographic for Employers: Which outlines employer obligations and examples of reasonable accommodations under the PWFA.
5. Informational Poster: Defines legal terms used in the PWFA, provides additional possible accommodations for pregnant workers, and outlining other federal laws that may apply to pregnant workers (i.e., Title VII, The ADA, The FMLA, and the PUMP Act).

The EEOC’s Proposed Rule

The EEOC’s Proposed Rule, published on August 11, 2023, provides insight on the agency’s interpretation of the PWFA. Below are a few of the key takeaways:

“Qualified” Individuals
The Proposed Rule provides two definitions for “qualified” individuals under the PWFA.

First, the PWFA copies the language used under the ADA, and protects current employees and applicants who, “with or without reasonable accommodation, can perform the essential functions of the employment position.”

Second—and importantly—the PWFA also extends to individuals who have a “temporary” inability to perform one or more essential functions of the position, as long as the employee could perform the essential function “in the near future,” and the inability to perform the essential function can be reasonably accommodated.

Notably, “in the near future” generally means 40 weeks from the start of the temporary suspension of an essential function. Accordingly, the employee may, if needed, request the suspension of one or more of their essential functions for a period of up to 40 weeks. The Proposed Rule provides that this 40-week period could begin either pre- or post-pregnancy. Additionally, the 40-week period could restart post-pregnancy once the employee has returned to work.

Covered Conditions
The PWFA defines a “known limitation” as a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Notably, the condition does not need to meet the definition of a “disability” under the ADA—the condition can be “modest, minor, and/or episodic.”

Additionally, the Proposed Rule provides that the PWFA extends to physical or mental conditions related to past, current, or potential pregnancies, as well as use of birth control, lactation, menstruation, fertility or infertility treatments, endometriosis, miscarriages, stillbirths, or having or choosing not to have an abortion.

The Proposed Rule also provides a non-exhaustive list of examples of conditions that could be covered. While some of these examples are “obvious” conditions, the Proposed Rule notes that it could also cover conditions common outside of pregnancy (e.g., depression, migraines, and carpal tunnel) as long as the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

Requesting Reasonable Accommodations
Finally, the Proposed Rule analyzes when it is reasonable to request supporting documentation from an employee requesting an accommodation, and methods by which the employee may request an accommodation.

The Proposed Rule provides that, while the PWFA does not require employers to seek supporting documentation from an employee requesting an accommodation, employers may require documentation “only if it is reasonable to do so under the circumstances.” The Proposed Rule provides examples of when it is not reasonable to require documentation, including: (1) when both the limitation and the need for reasonable accommodation are “obvious”; (2) when the employee has already provided the employer with sufficient information to substantiate that the employee has a known limitation and needs an accommodation; or (3) when the limitations for which an accommodation is needed involves lactation. Additionally, documentation is not reasonable when pregnant employees seek one of the following accommodations: (1) carrying water and drinking, as needed; (2) taking additional restroom breaks; (3) siting/standing modifications; and (4) breaks, as needed, to eat and drink.

An employee requesting an accommodation must identify the limitation and must indicate that they need a change or adjustment at work. The employee’s request does not need to be in writing—rather, employees may request accommodations in conversation or through other forms of communication.

Takeaways

Employers should review and update their reasonable accommodation policies and procedures to ensure compliance with the PWFA. Supervisors, human resources personnel, and leave administrators should also be trained on the expanded scope of potential reasonable accommodations. Employers are cautioned to take note of other laws applicable to their employees affected by pregnancy or childbirth, as the PWFA does not replace more protective federal, state, or local laws.