EEOC Issues Proposed Rules to Implement the Pregnant Workers Fairness Act

By Dustin Brown posted 08-11-2023 09:36 AM

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On August 7, 2023, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) to implement the Pregnant Workers Fairness Act (PWFA), which was signed into law by President Biden in December 2022 and took effect on June 27, 2023. The PWFA requires an employer to provide reasonable accommodations, absent undue hardship, to a qualified employee or applicant with a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the covered entity whether or not such condition meets the definition of disability under the Americans with Disabilities Act (ADA).

The PWFA applies to employers with 15 or more employees, employment agencies, labor unions, and the federal government. The law builds on existing protections against pregnancy discrimination under Title VII of the Civil Rights Act and access to reasonable accommodations under the ADA. You can learn more about the PWFA in this Employers Council article, which includes links to resources with more information about protections for workers affected by pregnancy, childbirth, and related conditions.

The NPRM explains how the EEOC proposes to interpret the PWFA, filling in gaps left unanswered by the law. The proposed rules provide definitions for certain terms in the statute, such as “known,” “limitation,” and “communicated to the employer.” It further provides numerous examples of possible reasonable accommodations and seeks public comment on whether there should be more examples and for what additional different situations.

Here are a few highlights from the proposed rule:

“Known” will be interpreted as “the employee or applicant, or a representative of the employee or applicant, has communicated the limitation to the covered entity.”
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, could be resolved in the “near future” (generally meaning within forty weeks), and the person could be reasonably accommodated during the period of time that they cannot perform the essential functions.

Medical documentation for pregnancy accommodations may only be required by an employer when it is reasonable under the circumstances.
The proposed rules identify a limited number of simple 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. The modifications in the proposed rule are as follows:
- allowing an employee to carry water and drink, as needed, in the employee’s work area
- allowing an employee additional restroom breaks
- allowing an employee whose work requires standing to sit and whose work requires sitting to stand
- allowing an employee breaks, as needed, to eat and drink

Employers are prohibited from requiring a qualified employee with a known limitation to take leave, either paid or unpaid, if another effective reasonable accommodation exists, absent undue hardship.
Employers will be required to post notices in conspicuous places describing applicable PWFA provisions.
Employers are prohibited from retaliating against employees for exercising their rights under the PWFA.

While the PWFA is a new federal law, Colorado employers are already required to undertake many of the same requirements as the PWFA under Colorado’s Pregnancy Accommodation Act. Employers in Colorado should review the federal requirements and ensure their policies are in line with both federal and state standards.

The proposed rules to implement the PWFA were published in the Federal Register on August 11, 2023, and the public comment period will last 60 days. Following public comment, the EEOC has until December 29, 2023, to issue final regulations. If you have any questions about the PWFA, the proposed rules, or pregnancy accommodations in general, please email Employers Council.