EEOC Releases Proposed Regulations for New Pregnancy Law

Earlier this month, the EEOC released proposed regulations to implement the Pregnant Workers Fairness Act (“PWFA,” or the “Act”), which we initially wrote about here. (The proposed rule can be found on the Federal Register’s website here.) Together with the new PUMP for Nursing Mothers Act, the PWFA is aimed at filling the gaps in federal and state laws regarding protections for employees experiencing pregnancy, childbirth, or related medical conditions.  

The PWFA, which went into effect on June 27, 2023, requires employers to provide reasonable accommodations—absent undue hardship—to a qualified employee or job applicant with a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The EEOC’s proposed rule addresses each element of this requirement, including clarifying what constitutes a “reasonable accommodation,” and provides examples of reasonable accommodations that employers should provide to qualified employees. 

Reasonable accommodations 

While the proposed rule points out that employers must conduct an individualized assessment to determine whether a modification is a reasonable accommodation that will impose undue hardship, the proposed rule provides a non-exhaustive list of examples of reasonable accommodations and modifications that would not impose undue hardship on the employer, such as: 

• 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; and  
• allowing an employee breaks, as needed, to eat and drink. 

Other reasonable accommodations may include schedule changes, part-time work, paid/unpaid leave, remote work, parking, or modifying equipment or policies. 

Requesting accommodations 

The proposed rule explains what an employee must communicate to the employer to request an accommodation under the PWFA—namely: 1) identify the limitation (a physical or mental condition, though not necessarily a disability), and 2) communicate to their employer that they need an adjustment or change at work.  

To request an accommodation, an employee need not mention the Act and may use plain, non-legal language (e.g., using the phrase “reasonable accommodation” is not required). The proposed rule encourages an interactive process between the employer and employee to identify and agree upon a reasonable accommodation, and notes that an employer may only require supporting documentation if both the act of requiring it and the documentation itself are reasonable.  

Potential controversies 

The proposed rule provides a broad definition of pregnancy, childbirth, or related medical conditions that includes, but is not limited to, current, past, and potential pregnancy; menstruation; use of birth control; lactation; and termination of pregnancy, including miscarriage and abortion. The proposed rule makes clear—consistent with other laws—that the Act does not require nor forbid an employer to pay for health insurance benefits for an abortion, but the inclusion of abortion as a related condition has drawn ire from pro-life groups and legislators who state that they plan to challenge the EEOC’s proposed rule.  

The PWFA, under the proposed rule, may also go beyond the requirements of the ADA in that an employer under the PWFA may be required to suspend essential job functions to accommodate individuals—compared to the ADA, which requires employers to provide a reasonable accommodation to qualified individuals with a disability if doing so enables them to perform essential job functions. 

Members of the public may submit comments on the proposed rule on the Federal Register website linked above. Deadline for public comments is October 10, 2023. Note that while the proposed rule is not in effect, the EEOC is already accepting complaints under the PWFA for situations arising on or after June 27, 2023. As always, please let us know if you have any questions about the PWFA or the proposed rule and how they might apply to your workplace.