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EEOC Issues Proposed Regulations to Implement the Pregnant Workers Fairness Act

ABSTRACT: EEOC publishes proposed regulations to implement the Pregnant Worker Fairness Act, which became effective on June 27, 2023.

The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. On August 11, 2023, the EEOC published its proposed regulations implementing the new law in the Federal Register. Public comments will be accepted through October 10, 2023. The EEOC has until December 29, 2023 to issue the final regulations. The regulations once finalized will provide detailed guidance from the agency on the scope of workers’ rights and the employers’ obligations under this new law.

We covered the basics of the PWFA in our July 28th blog (Baker Sterchi PWFA Blog 7.28.23). As a reminder, under the new law, employers with at least 15 employees are required to provide “reasonable accommodations” to employees known limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an “undue hardship”.

The 275+ pages of proposed regulations borrow heavily from definitions and concepts included in the Americans with Disabilities Act and Title VII, and their implementing regulations. This is a positive development since most employers and employees are already familiar with the ins and outs of these laws. For instance, the PWFA relies on the same or substantially similar definitions of “pregnancy, childbirth, or related medical conditions,” “reasonable accommodation,” “essential function,” and “undue hardship.” The proposed regulations also embrace the same process for filing a charge, the same available remedies and limitations, as well as the familiar concept of the required interactive process for discussing possible accommodations with employees.

An important distinction between an employer’s obligation to provide a reasonable accommodation under the ADA and the parallel PWFA requirement is that the proposed PWFA regulations provide protection to workers who are temporarily unable to perform the essential functions of their positions, so long as the worker is able to resume those duties in the “near future.” The regulations then propose defining the term “near future” as approximately 40 weeks. Recognizing that post-pregnancy complications are common, the proposed rules further provide the 40-week period could “restart” after the employee gives birth. The Commission is also seeking public comment on whether the 40-week period should be expanded to 52 weeks.

The regulations propose an expansive view of protected conditions that will include current, past, or potential pregnancy, lactation, use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, as well as high blood pressure, anxiety, or even carpal tunnel syndrome when related to the workers’ pregnancy or birth of a child.

The proposed regulations also identify “predictable assessments” of undue hardships, which are essentially modifications that will, in almost every situation, be found to be “reasonable accommodations” under the PWFA that do not impose an undue hardship when requested by an employee due to pregnancy. They include the following accommodations, which would be permitted as needed: (1) carrying water or being permitted to drink in the employee’s work area; (2) allowing additional restroom breaks; (3) allowing employees to sit or stand; and (4) allowing breaks to eat and drink. These accommodations are expected to be provided in nearly all circumstances without medical documentation.

Stay tuned for another update once the public comment period closes and the final regulations are implemented.