News & Insights

EEOC Publishes Proposed Rule To Implement The Pregnant Workers Fairness Act

On August 11, 2023, the Equal Employment Opportunity Commission (“EEOC”) published its proposed regulations to implement the Pregnant Workers Fairness Act (“PWFA”) in the Federal Register. The PWFA became effective June 27, 2023, and requires that employers with at least 15 employees provide reasonable accommodations, absent undue hardship, to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The EEOC’s proposed regulations provide guidance on how the PFFA should be interpreted.

Qualified employees that are limited due to pregnancy, childbirth, and related medical conditions are entitled to an accommodation as long as it does not create an undue hardship. Unlike the ADA, an employee who cannot perform their essential duties may still be qualified. As such, the employer must grant the requested accommodation or an equally effective accommodation, unless doing so imposes an undue hardship.

An employer may be able to demonstrate an undue hardship when removing an essential function would impose significant difficulty or expense. The proposed regulations identify the following factors for employers to consider: (1) the length of time that the employee or applicant will be unable to perform the essential function(s); (2) whether there is work for the employee to accomplish by allowing the employee to perform all the other functions of the job, transferring the employee to a different position, or otherwise; (3) the nature of the essential function, including its frequency; (4) whether the covered entity has temporarily suspended the performance of essential job functions for other employees in similar positions; (5) whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s); and (6) whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

With regard to who is “qualified”, the PWFA has two definitions. The first echoes the ADA, providing that “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position” is qualified. However, pursuant to the second definition, if an employee cannot perform one or more essential functions of her job, she is still qualified if: (1) the inability to perform an essential job function is for a temporary period; (2) the essential job function(s) could be performed in the near future; and (3) the inability to perform the essential function(s) can be reasonably accommodated.

Employers are required to accommodate any “known limitation”, including any mental or physical impediment or problem related to pregnancy, childbirth or related medical condition. The EEOC construes these terms broadly and offers non-exhaustive examples of conditions that may be covered by the PWFA. Unlike the ADA, an employee does not have to establish that a limitation meets a specific level of severity to be covered under the PFWA.

The proposed regulations are subject to a 60-day comment period. The PWFA requires the EEOC to issue final regulations by December 29, 2023. Employers should review the proposed regulations in order to better understand how the EEOC is currently interpreting the new law and determine whether any changes need to be made to existing policies and procedures.