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  • Writer's picturePaul Peter Nicolai

EEOC Proposes Rules for Pregnant Workers Fairness Act

The EEOC has issued a set of proposed rules to implement the Pregnant Workers Fairness Act(PWFA), a new law that protects the rights of pregnant and postpartum workers and applicants.


EEOC provides a framework for interpreting the PWFA, including its defined terms, while highlighting various potential reasonable accommodations for covered workers.


The EEOC will have until 29 December 2023 to issue the final regulations once the comment period closes. While the final regulations may change with the final rule, employers can use this time to review current accommodation practices to ensure compliance with the PWFA, which was effective in June 2023.


Overview


The goal of the PWFA is to allow pregnant and postpartum workers to remain actively employed with the support of a reasonable accommodation. The NPRM, therefore, borrows from several civil rights acts, and its definitions largely track the Americans with Disabilities Act’s (ADA) foundational terms.


PWFA extends protections to workers who require an accommodation due to a known limitation due to pregnancy, childbirth, or a related medical condition. A related medical condition includes current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion. The rules say reasonable accommodations may also be required for conditions related to infertility, miscarriage, postpartum depression, and pre-existing medical conditions exacerbated by pregnancy, such as hypertension, diabetes, depression, or anxiety.


EEOC also guides applying for accommodation requests under the PWFA and incorporates the ADA’s definitions for “essential function,” “reasonable accommodation,” “undue hardship,” and “interactive process,” with some distinctions.


First, unlike the ADA, the definition of “limitation” for determining whether the impairment limits a significant life activity does not require a specific level of severity to trigger the employer’s obligation to provide a reasonable accommodation. This is because the PWFA is intended to cover employees whose limitations do not reach the threshold for accommodations under the ADA.


Second, this rule replaces the ADA’s references to an “individual with a disability” with an “employee with a known limitation.”


Third, like the ADA, this rule does not require any magic words to trigger a request for an accommodation.


Qualified Individual


The PWFA has two definitions to determine who qualifies for an accommodation. The first is borrowed from the ADA. The second provides that an employee or applicant is qualified even if they cannot perform one or more essential functions of the job; if the inability to perform the essential function(s) is temporary, the worker could perform the essential function(s) in the near future, and the inability to perform the essential function(s) can be reasonably accommodated. In the near future is generally defined to mean 40 weeks (the duration of a full-term pregnancy).


Reasonable Accommodations


A significant part of the rule previews the breadth and unique nature of possible accommodations under the PWFA. Examples of potential reasonable accommodations include:

  • Providing frequent breaks;

  • Changing schedules, including reducing the employee’s hours to part-time work, and

  • Providing paid and unpaid leave.

Like the ADA, this rule cautions that an employer cannot demonstrate undue hardship based on an assumption or speculation that other employees might seek a reasonable accommodation or that the same employee might seek another reasonable accommodation in the future. Similarly, an employer that receives numerous requests for the same or similar accommodation at the same time cannot deny all of them simply because processing the volume of the requests is burdensome or because it cannot grant all of the requests.


To reduce litigation and improve the speed at which a PWFA accommodation request is granted, the rule identifies four predictable assessments that, in virtually all cases, are reasonable accommodations that do not impose undue hardship when requested by an employee due to pregnancy. They are:

  • Allowing an employee to carry water and drink, as needed, in the employee’s work area;

  • Allowing additional restroom breaks;

  • Allowing employees whose work requires standing to sit and whose work requires sitting to stand and

  • Allowing breaks, as needed, to eat and drink.

Documentation


Like the ADA, employers are not required to seek supporting documentation from a worker seeking an accommodation. They may require supporting documentation only if it is reasonably necessary to determine whether to grant the accommodation. As a best practice, EEOC encourages an employer that requires documentation to grant interim accommodation if there is a delay in the employee providing the supporting documentation.


Examples of circumstances in which the EEOC would consider a request for documentation unreasonable include when the limitation and the need for the accommodation are obvious, such as when a visibly pregnant worker requests a different uniform size or larger equipment. Other examples include when the qualified employee has already provided sufficient information to substantiate the request (like leave for a medical appointment) when the employee requests a predictable assessment, and when the accommodation request involves lactation. Under the rule, unreasonable requests for documentation and unnecessary employer delays that result in a failure to accommodate may violate the PWFA.


An employer may violate the law if it forces an accommodation on an employee not discussed during the interactive process or intended to help the employee out of concern but is not based on a request or actual limitation. Finally, requiring an employee to take leave if another accommodation will permit them to remain at work may run afoul of the PWFA.


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