EEOC Issues Proposed Regulations to the Pregnant Workers Fairness Act

August 9, 2023 Advisory

On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) went into effect. The new law requires employers with 15 or more employees to provide reasonable accommodations to “qualified employees” or applicants with known limitations related to pregnancy, childbirth or related medical conditions, absent undue hardship on the employer.

The PWFA was enacted to address gaps in federal legal protections for workers affected by pregnancy, childbirth or related medical conditions. In effect, the PWFA builds upon existing protections against pregnancy discrimination under Title VII of the Civil Rights Act and access to reasonable accommodations under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

The EEOC’s Proposed Regulations

Within one year of the PWFA’s enactment, the Equal Employment Opportunity Commission (EEOC) was required to issue regulations to carry out the law. One month after its enactment, on Aug. 7, 2023, the EEOC issued the proposed regulations, which will be published in the Federal Register on Aug. 11, 2023. The EEOC’s proposed regulations detail the history of the PWFA; the limitations in coverage under Title VII, the ADA and the FMLA; and the anticipated impact the PWFA will have on employers and employees. The proposed regulations also address each element of the PWFA and provide examples of reasonable accommodations that could be provided under the law.

In one example, the EEOC notes an employer should provide a visibly pregnant employee with a reasonable accommodation, such as the ability to sit while working at a cash register, absent a doctor’s note confirming the pregnancy. The EEOC states the employer is not permitted to require additional medical documentation because the employee is visibly pregnant.

Notably, in the proposal, the EEOC advises that voluntary compliance is critical for the PWFA: “If a worker quits their job because they do not receive an accommodation, it is of little use to that worker that years later they are able to establish through litigation that they should have received an accommodation. Voluntary compliance should be the norm because, while the form of reasonable accommodation will vary depending on the job and the worker’s needs, the accommodations that most workers will seek likely will be no cost to low cost and may be as simple as access to water during the workday, additional bathroom breaks, or sitting or standing.”

Key Takeaways

Employers may want to review their existing policies regarding accommodations related to pregnancy, childbirth or related medical conditions with regard to the proposed regulations. While the regulations are not yet in effect, the EEOC views voluntary compliance as critical, so attempts to comply with the regulations will likely be viewed favorably in the event a charge under the PWFA is brought before the EEOC.

Comments regarding the proposed regulations must be received by the EEOC on or before 60 days after publication in the Federal Register. Armstrong Teasdale will continue to monitor developments with respect to the PWFA and the EEOC’s proposed regulations, and will provide updates as additional information becomes available.

If you have questions regarding the PWFA or your company’s ability to provide reasonable accommodations, please reach out to your regular Armstrong Teasdale lawyer or one of the authors.

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