EEOC Proposes Pregnant Workers’ Fairness Act Regulations
On Friday, the EEOC is set to issue proposed regulations to implement the Pregnant Workers Fairness Act (PWFA). The proposed regulations will be published in the Federal Register, located here.
Background:
Signed by President Biden in December 2022 and effective June 27, 2023, the PWFA requires a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity. See our previous Client Alert about the passage of the PWFA here.
What’s in the Proposed Rule?
Among other noteworthy proposals, the regulations would require employers to apply PWFA protections to a broad range of medical conditions that the EEOC says are related to pregnancy or childbirth (such as current pregnancy, past pregnancy, potential pregnancy, use of birth control, and infertility and fertility treatments), and would require employers to abide by a different reasonable accommodation and interactive process than employers are likely familiar with under the ADA. A few examples include:
- Employers would be required to consider an employee qualified for a PWFA reasonable accommodation even if the employee was unable to perform an essential function of their job, as long as the employee’s inability to do so was both temporary in nature and the employee would be able to perform the essential job functions “in the near future.” The proposed regulations go on to define “in the near future” to mean generally 40 weeks from the start of the temporary suspension of an essential function.
- Circumstances under which an employer has the ability to require medical documentation to support an employee’s PWFA-related reasonable accommodation request are significantly limited (as compared to an employer’s ability to require medical documentation to support an employee’s ADA-related reasonable accommodation request).
- The proposed regulations also restrict an employer’s ability to require an employee to be examined by a healthcare provider of the employer’s choosing.
Additionally, the proposed regulations provide specific examples of possible reasonable accommodations under the PWFA. That list includes:
- Light duty
- Temporarily suspending one or more essential job functions of the position
- Intermittent and continuous leave
- Accommodations related to pumping, such as that the space available for lactation is in reasonable proximity to a sink, running water, and a refrigerator for storing milk.
Like the ADA, however, a qualified employee’s request for an accommodation under the PWFA remains subject to an employer’s evaluation of whether the accommodation would pose an undue hardship.
What’s Next?
Once the proposed regulations are published in the Federal Register (scheduled publication is Friday, August 11, 2023), the EEOC will accept comments from interested parties for 60 days. The EEOC will then consider the comments and will likely issue a final rule. The final rule would also be published in the Federal Register, would include the EEOC’s responses to comments received, and (absent extenuating circumstances) provide employers at least 30 days to become compliant.
What Now?
It is important to remember that these proposed regulations are simply proposals and not yet enforceable. However, the EEOC’s proposed regulations do provide employers insight on how the EEOC plans to interpret employer obligation under the PWFA. As a result, employers should take the time to become familiar with the proposed regulations and keep them in mind when considering requests for reasonable accommodations from employees who are pregnant or who have pregnancy-related medical conditions.
If you have any questions about the impact of the proposed regulations on your organization, please contact your Miller Johnson attorney or the authors of this alert.