The Equal Employment Opportunity Commission (EEOC) has posted a Notice of Proposed Rulemaking for the Pregnant Workers Fairness Act (PWFA). The proposed regulations were released on August 11, 2023, with a public comment period set to end October 10, 2023.
The PWFA applies to all employers with 15 or more employees and requires an employer to provide reasonable accommodations, absent undue hardship, to a qualified employee or applicant with a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
The proposed rule addresses each element of this requirement and provides examples of reasonable accommodations. According to the EEOC, the PWFA responds to various limitations and gaps in current federal legal protections (e.g., Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Family Medical Leave Act of 1993 and various state and local laws).
A few of the key provisions of the PWFA regulations include:
- Procedures for filing a claim under the PWFA as well as available remedies, including an ability to obtain damages, and limitations are the same as for other federal statutes such as Title VII and the ADA (as amended).
- A “known limitation” is defined 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” under the ADA.
- A “qualified” individual is defined as “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.”
- An individual may be “qualified” under the PWFA 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.[i]
- Examples of reasonable accommodation under the regulations are provided and include the following:
- Frequent breaks
- Schedule changes, part-time work, and paid and unpaid leave
- Light duty
- Making existing facilities accessible or modifying the work environment
- Job restructuring
- Temporarily suspending one or more essential function
- Acquiring or modifying equipment, uniforms, or devices; and
- Adjusting or modifying examinations or policies.
- Employers are not required to seek supporting documentation in connection with an accommodation request under the PWFA. In fact, a request for documentation is only permitted “if it is reasonable to require documentation under the circumstances” and is limited to documentation that itself is reasonable. Examples of when it would not be reasonable for an employer to require documentation are provided for in the regulations.
Interested employers should review the EEOC’s Summary of Key Provisions for the PWFA and/or the official Notice which provides additional details including how to submit comments ahead of the October deadline.
[i] The terms, “temporary,” “in the near future,” and “can be reasonably accommodated” are not defined in the PWFA.