EEOC Releases Draft Regulations for the Pregnant Workers Fairness Act
by Jill Kahn Marshall
On June 27, 2023, the Pregnant Workers’ Fairness Act (PWFA) was signed into law, providing additional workplace protections for pregnant workers and workers experiencing pregnancy-related conditions. Last Friday, the Equal Employment Opportunity Commission (EEOC) released draft regulations that further explain the parameters of the law. While the proposed regulations could change following a 60-day comment period, the draft illuminates the federal agency’s thinking as to how the law is likely to be interpreted going forward.
While pregnant workers were already entitled to certain protections based on the Pregnancy Discrimination Act (PDA), which, in 1978, amended Title VII to prohibit workplace discrimination on the basis of pregnancy, childbirth, or related medical conditions, the PDA’s framework left certain gaps with respect to workplace accommodations for pregnancy or related conditions. A seminal 2015 Supreme Court case titled Young v. UPS held that employers could not deny pregnant workers accommodations provided to other non-pregnant workers “similar in their ability or inability to work” unless they had a “sufficiently strong” reason for doing so, but the ruling did not close all loopholes with respect to pregnant workers. For example, there was still no clear guidance for health conditions specific to pregnancy for which there was no comparator. The law also did not consider that pregnant employees may have a different timeline for returning to job duties than others. After many years of advocacy, Congress enacted the PWFA on a bipartisan basis to address such questions. The law requires that covered employers (those with 15 or more employees) provide reasonable accommodations in response to a workers’ “known limitations” related pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. Essentially, the PWFA officially extends the protections of the Americans with Disabilities Act (ADA) to pregnant workers who may not meet the definition for disability under the ADA, but who also require workplace accommodations.
The EEOC’s proposed regulations attempt to clarify certain parameters of the PWFA, including the definition for a “known limitation” that is covered by the law. They state that “limitation” is to be construed broadly, including “modest, minor, and/or episodic impediment or problems.” “Known” shall mean that the employee has communicated the limitation to the employer. The regulations also clarify that “pregnancy and related conditions” as covered by the law are quite expansive, including “current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.” The EEOC notes that these conditions were already included in prior EEOC regulations regarding the breadth of Title VII’s coverage of “pregnancy and related conditions,” so they are not groundbreaking although they bear repeating.
The EEOC also attempts to clarify who is “qualified” to perform essential functions of their job, as is necessary to be entitled to a reasonable accommodation. The agency proposes that someone may not be able to perform essential functions of the job, and may still be “qualified” where such inability is only “temporary,” in that the worker could perform the essential functions “in the near future,” and the inability to perform the essential functions can be reasonably accommodated. “In the near future” is defined as up to 40 weeks, which is of course the length of most full-term pregnancies.
The EEOC also provides specific examples as to what may constitute a “reasonable accommodation” under the law. In a departure from the ADA, the regulations affirmatively state that “temporarily suspending one or more essential functions” may constitute a reasonable accommodation. The agency also includes a list of accommodations that categorically do not create an undue hardship under the law: (1) allowing an employee to carry water and drink in the work area; (2) allowing an employee additional restroom breaks; (3) allowing an employee to sit or stand as needed; or (4) allowing an employee breaks to eat and drink as needed.
The proposed regulations are in draft form and could change following the notice and comment period. However, employers and employees faced with questions about the interpretation of the PWFA in the interim would be wise to heed this guidance until the EEOC issues its final rule.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Jill Kahn Marshall, who counsels individuals and corporations in the areas of employment law, litigation and dispute resolution, and healthcare. Ms. Marshall is admitted to practice law in New York and Massachusetts, as well as the District Courts for Massachusetts and the Southern and Eastern Districts of New York.