EEOC Regulations to Implement Pregnant Workers Fairness Act

The proposed regulations will be published in the Federal Register for public comment on Friday, August 11, 2023. Thereafter, the public will have 60 days to submit comments. The EEOC must issue final regulations by December 29, 2023. The regulations expand on employers’ responsibilities under the PWFA and purport to give guidance on how to comply with those responsibilities.

The PWFA states, in part, that employers must make reasonable accommodations for employees “affected by pregnancy, childbirth, or related medical conditions” unless an employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business. The regulations proposed by the EEOC include a “non-exhaustive list” of conditions that the EEOC has concluded “generally fall within the statutory definition,” including current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, postpartum anxiety and depression, endometriosis, miscarriage, and stillbirth. Also, consistent with past agency interpretation, the law covers having or choosing not to have an abortion. The EEOC did clarify, however, that this does not mean employer health plans are required to “pay for or cover any item, procedure, or treatment” related to abortions, and the PWFA does not require a religious entity to make an accommodation that would conflict with the entity’s religion.

The EEOC identified various types of reasonable accommodations that an employee may seek under the PWFA, including, but not limited to:

• More frequent breaks.
• Seating where jobs require standing or standing in jobs that require sitting.
• Schedule changes or part-time or modified work schedules.
• Telework. 
• Reserved parking spaces.
• Assignment to light duty, even where those positions are normally reserved for those injured on the job.
• Making existing facilities accessible or modifying the work environment.
• Acquisition or modification of equipment, uniforms or devices.
• Use of paid leave (whether accrued, short-term disability or another type of employer benefit) or providing unpaid leave, including to attend healthcare-related appointments and to recover from childbirth.
• Accommodating a worker’s inability to perform one or more essential functions of a job by temporarily suspending the requirement that the employee perform that function, if the inability to perform the essential function is temporary and the worker could perform the essential function in the near future.

The EEOC identified four pregnancy accommodations that the agency calls “predictable assessment” accommodations. These would be reasonable in virtually every circumstance. They include extra time to use the restroom, providing food and drink breaks, allowing employees to drink water on the job, and requiring sitting or standing only as necessary.

Much of the regulations track concepts with which employers already are familiar under the Americans with Disabilities Act (ADA), such as “undue hardship,” “interactive process,” “essential job functions,” and “reasonable accommodations.”  That said, the regulations, consistent with the PWFA, differ from the ADA in that they hold that an employee still can be “qualified” for her position even if she cannot perform the essential functions of her position, provided she can do so within the “near future.”  “Near future” is defined as forty weeks from the inability to perform the functions. 

Pursuant to the proposed regulations, an employer lawfully may request documentation if needed to determine whether to grant the accommodation. Employers may not seek documentation if the limitation or need for an accommodation is obvious, if the employee or applicant has provided sufficient information to evidence the limitation and need for an accommodation, if the accommodation is one of the four predictable assessments, and/or if the accommodation is related to lactation/pumping and the employee or applicant states a need for the accommodation.

Conclusion

Employers should review their policies to confirm what accommodations are currently in place to accommodate employees with conditions that fall under the PWFA, and they may want to consider what accommodations may or may not be reasonable and appropriate given their businesses and the proposed regulations to the PWFA. Klehr Harrison attorneys will continue to analyze and report on the proposed regulations and, as always, are prepared to discuss which accommodations make the most sense for your business under the circumstances.

Author Lee Moylan is chair of the labor and employment practice at Klehr Harrison.