EEOC's Proposed Rule on the Pregnant Workers Fairness Act: Key Provisions Recap

Mathew Tully, Esq., for Tully Rinckey PLLC

On August 7, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published a Notice of Proposed Rulemaking (NPRM) to implement the Pregnant Workers Fairness Act (PWFA). Available in full here, the NPRM is available for public comment until Oct. 10, 2023.

To refresh, the PWFA requires eligible employers to make reasonable accommodations for a worker’s recognized limitations relating to pregnancy, childbirth, or associated medical conditions, unless the accommodation would cause the employer undue hardship. This statute expands on existing Title VII Civil Rights Act protections against pregnancy discrimination and Americans with Disabilities Act access to reasonable accommodations.

The PWFA additionally requires that the EEOC promulgate regulations for implementing the statute within one year of its enactment. Having gone into effect on June 27, 2023, the quick turnaround on the NPRM is a good sign for workers and families in the American workforce, as this new civil rights law will help to promote employment and economic security for pregnant and postpartum workers.

Below is a summary of the key highlights of the NPRM.

Who Does the PWFA Cover?

The PWFA covers almost all employees, applicants, or former employees that are currently covered by Title VII of the Civil Rights Act of 1964; the Congressional Accountability Act of 1995; the Government Employee Rights Act of 1991; or Section 717 of Title VII, covering federal employees.

Key Term Definitions

“Known Limitations”

“Known limitations” are defined in the PWFA as a “physical or mental condition 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.”

In the proposed rule, what this means is that the employee or applicant has communicated their limitations that have arisen or resulted from pregnancy, childbirth, or other related medical conditions.

Additionally, when it comes to defining what “physical or mental conditions” refer to, there is a lot of room for interpretation. The NPRM clarifies that limitations can be modest or minor, in relation to maintaining proper health during pregnancy or seeking medical care related to pregnancy or childbirth. In essence, there is no level of severity or specific trigger that would need to be reached in order to request access for reasonable accommodations.

“Reasonable Accommodations”

“Reasonable accommodations” is a ubiquitous term found in many pieces of legislation, including the Americans with Disabilities Act (ADA), which the PWFA borrows its definition from.

Generally, reasonable accommodations mean a change in the work environment and how the fundamental duties of the job are performed. Some specific examples of reasonable accommodations under the PWFA include:

Schedule changes;Telework;Modifying the work environment;Job restructuring; and/orMore frequent sitting/standing breaks.Note that these are possible accommodations that could be offered. Generally, there is an interactive process between employee and employer—often in the form of a two-way discussion—that can be used to anticipate/identify accommodations needed due to pregnancy limitations. While an employee can ask for a certain accommodation, there is no guarantee they will get a specific one.

“Undue Hardship”

In talking about access to accommodations, “undue hardship” is another important term the PWFA borrows from the ADA, relating to the significant cost or difficulty of providing accommodations to the employer for the qualified employee.

Traditionally, when it comes to determining if a temporary suspension of essential job duties causes an undue burden, a few factors are taken into consideration, including the anticipated length of time the employee or applicant would be unable to perform their duty, whether there would be any work the employee would be able to accomplish, the nature of the job’s essential functions, what other accommodations the employer has offered to employees in similar positions, whether the essential functions of the job can go without being done (if possible) and for how long, and if there are any other employees who could perform those essential functions.

The proposed rules outline a few simple modifications that, in most cases, will be found to be reasonable accommodations that do not impose an undue hardship. Those modifications include having access to food or drink in or near the work area with a proper break to consume them, allowing an employee to sit or stand while working, and allowing an employee additional restroom breaks.

These examples are not meant to substitute the interactive process, but rather, pose some simple modifications that, in most circumstances, would not/could not be found to impose an undue hardship when requested by a pregnant employee.

How to Request Accommodations

Under the proposed rules, there are two parts to an accommodation request. The applicant or employee (or their representative) must first specify the restriction, which must be a physical or mental condition caused by, influenced by, or resulting from pregnancy, childbirth, or other medical circumstances. Second, the candidate or employee (or their representative) must state that they require a modification or alteration at work. A request for a reasonable accommodation under the PWFA is not required to be in writing or to use any particular words or phrases under the proposed regulation. Instead, employees or candidates may seek accommodations in conversation or via another channel of communication to tell the company.

Relationship With Existing Pregnancy Discrimination Laws

The PWFA does not restrict the rights of those covered by federal, state, or local legislation that offers greater or equal protection to those who are affected by pregnancy, childbirth, or related medical issues.

Prohibited Acts

While there are additional considerations for employers when it comes to complying with this provision, the PWFA prohibits an employer from denying qualified employees or applicants with known limitations a reasonable accommodation without proving undue hardship. Things like if the employee declines a reasonable accommodation and, without it, cannot perform the job’s necessary function, could lead that employee to no longer be qualified under the PWFA.

Regardless, the EEOC states they will continue to release updates and educational resources on the PWFA, further clarifying what employers need to know about providing workplace accommodations and providing tips for employees who are looking to request accommodations.

If you or someone you know is curious about what their rights are when it comes to requesting workplace accommodations, our team of attorneys has decades of experience handling pregnancy discrimination matters and can assist you today.

Tully Rinckey PLLC has experience assisting federal employees with classification appeals and is ready to help you today. Mathew B. Tully is a founding partner of the firm and concentrates his practice on representing federal government employees and military personnel. To schedule a consultation with one of the firm’s federal employment law attorneys call (888)-529-4543 or email [email protected].

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