In its latest effort to never make a decision too soon, this week, on August 7, 2023, the Equal Employment Opportunity Commission (EEOC) released proposed rules/regulations on how to implement the Pregnant Workers Fairness Act (PWFA).
The PWFA was passed by Congress in March 2023 and became effective on June 27, 2023, 180 days after President Biden signed the Act. The PWFA creates new requirements for employers of 15 or more employees (the same threshold for coverage as the Americans with Disability Act), and affords individuals who have limitations related to pregnancy, childbirth, or related medical conditions a right to reasonable accommodation in the workplace.
While we wait for regulations to become final and effective, the EEOC has already instructed employers how they should conduct themselves when an employee requests reasonable accommodation. First, the definition of pregnancy related medical conditions or limitations is expansive; it applies to any “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” This definition could include pre-existing conditions that are exacerbated by pregnancy or even complications and needs related to nursing and/or expressing breast milk during the workday. Next, the EEOC and Congress have also already provided several examples of what constitutes a reasonable accommodation, including:
- 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.
The above lists merely provides examples of what will be deemed per se reasonable. The appropriateness of any accommodation must go through an individualized assessment, where the employer and employee engage in the interactive process to determine if the requested accommodation is reasonable or if it presents an “undue hardship” on the employer. The PWFA adopts the ADA’s high-bar standard for “undue hardship,” meaning an employer can only claim a requested accommodation creates an “undue hardship” if the accommodation creates significant difficulty or expense for the employer.
Finally, the PWFA provides non-discrimination protections to individuals who require reasonable accommodation due to pregnancy. A covered employer may not:
- Require an employee to accept an accommodation other than one arrived at through a discussion between the employee and the employer (i.e. the interactive process);
- Deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations;
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee continue working; or
- Take adverse action and/or retaliate against an individual for requesting an accommodation, or for opposing unlawful discrimination under the PWFA or otherwise participating in a PWFA proceeding (such as an investigation).
As a refresher for those not well versed in administrative law or process, these proposed regulations must first be open for public comment for at least 60 days from the date of publication, August 11, 2023. A copy of the proposed regulations can be viewed on the Federal Register. In the meantime, the EEOC has provided a FAQ to address some of the common issues that employers may use to help navigate this new law until the regulations are final.