On August 7, 2023, the EEOC announced its proposed regulations on the enforcement of the Pregnant Workers Fairness Act (“PWFA” or the “Act”), which was originally passed in 2022. These proposed regulations provide employers with the EEOC’s interpretation of the Act and necessary guidance to ensure employer compliance. The PWFA was created to provide reasonable accommodations to workers experiencing pregnancy, childbirth, or a related medical condition.

Coverage for the PWFA mirrors that of Title VII and the Americans with Disabilities Act of 1990 (“ADA”), just to name a couple. All employers, employees, applicants, and former employees covered by Title VII, The Congressional Accountability Act of 1990 (“CAA”), the Government Employee Rights Act of 1991 (“GERA”), or the ADA are considered “employers” and “employees” for PWFA purposes. The Act states that only qualified employees (as defined by the ADA) are eligible for the protections and privileges outlined in its subsections. 

Employers familiar with the ADA may recall that a qualified employee is defined as, “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.” The PWFA also refers to workers with a “known limitation,” defined under the ADA 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 employer whether or not such condition meets the definition of disability.” 

Then why was the creation of the PWFA necessary, especially if the Act mirrors the covered entities and definitions of federal regulations?

Despite certain protections for pregnant workers under the ADA and Title VII, major gaps in such federal legislation still remained for workers affected by pregnancy or pregnancy/childbirth-related medical conditions. For example, Title VII allows for pregnant workers to obtain a workplace modification, but only if the pregnant worker can show a “similarly situated” employee who did receive an accommodation that allowed them to continue the duties of their position. An employee is considered similarly situated if they share similarities in their ability, or inability, to work. Since pregnancy is a unique situation, a similarly situated employee is not always available, thus barring the pregnant worker from receiving an accommodation or any subsequent legal remedy. 

The PWFA attempts to close these gaps for increased equity in the treatment of pregnant workers in the workplace. In addition to using the ADA’s definition, the PWFA provides a second definition for qualified employees. Under this second definition, a worker who is unable to perform essential functions is still regarded as qualified if: 

(1) Their inability to perform essential functions is “temporary;”

(2) The worker could perform the essential functions “in the near future;” and 

(3) The inability to perform the essential functions can be reasonably accommodated. 

Inability to perform is regarded as “temporary” if it is not permanent, even though it has potential to extend beyond “in the near future.” It is important to note that courts generally have interpreted “in the near future” to mean approximately forty (40) weeks.

The EEOC’s proposed regulations also provide guidance as to what constitutes a reasonable accommodation. The following list is not comprehensive of all possible reasonable accommodations which may include:

• Job restructuring;
• Part-time or modified work schedules;
• More frequent breaks;
• Acquisition or modification of equipment, uniforms, or devices;
• Allowing seating for jobs that require standing;
• Adjustment or modification of examinations or policies;
• Telework options; or
• Temporarily suspending the performance requirement for essential job functions. 

Should a reasonable accommodation be found to impose undue hardship on an employer’s business operations, the employer may lawfully deny that accommodation. However, such a determination should not be reached prior to the employer engaging in an interactive process with the employee. 

Prohibited employer acts under the PWFA:

• Denying a qualified employee with a known limitation a reasonable accommodation, absent undue hardship;
• Requiring a qualified employee to accept an accommodation that was not reached as the result of an interactive process;
• Denying employment opportunities to a qualified employee or applicant if the denial is based on the entity’s need to make a reasonable accommodation;
• Requiring a qualified employee with a known limitation to take leave – paid or unpaid – when another effective reasonable accommodation exists without undue hardship;
• Taking adverse actions in terms, condition, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation; and
• Coercion, intimidation, threats, or interference with any individual exercising or enjoying rights under the PWFA or with any individual encouraging another individual to exercise or enjoy rights under the PWFA.

The PWFA also adopts all remedies and enforcement options afforded to workers under Title VII, GERA, CAA, Chapter 5 of Title 3 of the United States Code, and section 717 of the Civil Rights Act of 1964. The proposed regulations were published to the federal register on August 11, 2023. The comment period is currently open for entities wishing to seek clarification on any lingering questions they have regarding their liability under these new regulations. Entities will have until October 10, 2023, to submit a comment to the EEOC. 

With these new proposed regulations, it is vital that employers have an accurate understanding of their obligations to current employees and applicants. It is imperative that employers engage in an interactive process with employees requesting accommodations prior to conducting any adverse action against those employees. For counsel on how to ensure your company’s compliance, a detailed breakdown of what this new interactive process may include, and other requirements under the PWFA, schedule a consultation with a Stanton Law team member.