EEOC Offers Guidance on Implementing the Pregnant Workers Fairness Act

On June 27, 2023, the Equal Employment Opportunity Commission (EEOC) began accepting charges under the Pregnant Workers Fairness Act (PWFA), and on August 11, 2023, issued a Notice of Proposed Rulemaking (NPRM) providing guidance on the PWFA’s implementation. The NPRM was published on the Federal Register on August 11, with a 60-day period for public comments. The EEOC’s final regulations are expected by December 29, 2023.

Overview

As discussed in greater detail in our prior advisory, the PWFA was adopted to address the gaps in federal workplace accommodation protections for workers affected by pregnancy, childbirth, or related medical conditions. Previously, workers affected by such conditions may have been eligible for certain protections under the Pregnancy Discrimination Act (PDA), the Americans with Disability Act (ADA), or Family Medical Leave Act (FMLA), before the PWFA they had no free-standing right to workplace accommodations under federal law. Absent undue hardship, covered employers are now required to provide reasonable workplace accommodations to workers affected by pregnancy, childbirth or related medical conditions.

The NPRM issued by the EEOC provides guidance on numerous elements of the PWFA, including coverage, remedies and enforcement, how to request accommodation, prohibited acts, and the PWFA’s relationship to other laws. However, the most practical guidance in the NPRM may come from the substantial explanations of the definitions relevant to the PWFA.

Qualified Individuals Defined

The PWFA extends its protections to “qualified” individuals, defined as applicants or employees who are “temporarily” unable to perform an essential job function but could perform the essential function “in the near future,” and the “inability to perform the essential function can be reasonably accommodated.” To facilitate compliance, the NPRM further defines the relevant phrases as follows:

Temporary Inability: Lasting for a limited period of time, not permanent, and may extend beyond in the near future.
Ability to Perform in the Near Future: The ability to perform the essential function(s) will generally resume within 40 weeks (the duration of a full-term pregnancy) of its suspension.
Inability Can Be Reasonably Accommodated: May be accomplished by many arrangements, including but not limited to (1) suspending the essential function temporarily, while continuing remaining functions of position; (2) performing remaining functions of position and other functions assigned by employer; (3) performing functions of a different position to which the employee is temporarily transferred or assigned; or (4) assigning or participating in light or modified duty plan.

Other definitions offered in the NPRM including “undue hardship,” “essential function,” and “interactive process” are defined and addressed in much the same way as other federal statutes like PDA and the ADA.

Pregnancy-Related Conditions

The definition drawing the most attention since the NPRM’s publication, however, is “pregnancy, childbirth, and related medical condition,” which is defined in part as “having or choosing not to have an abortion.” While the NPRM provides that “nothing in the PWFA required or forbids an employer to pay for health insurance benefits for an abortion,” lawmakers, including Senator Bill Cassidy (R-La.), have taken issue with the inclusion of abortion language as an “attempt to rewrite the law by regulation.” The NPRM also offers specific examples of reasonable accommodations including frequent breaks, sitting/standing, schedule changes, telework, parking modifications, light duty, modified equipment, or leave. And, for avoidance of doubt, the specific examples are accompanied by several narrative illustrations demonstrating the PWFA’s real world application.

Buchanan’s labor and employment attorneys are closely monitoring the EEOC’s comment process, as well as the implementation and any changes to the PWFA. If you have any questions regarding your company’s pregnancy accommodation policies, please contact the authors.