EEOC Proposes Regulations to Implement the Pregnant Workers Fairness Act

The Equal Employment Opportunity Commission (“EEOC”) has released a Notice of Proposed Rulemaking containing its proposed regulations to implement the Pregnant Workers Fairness Act (“PWFA”).  If the proposed regulations are adopted, employers will be required to revise their approaches to assessing reasonable accommodations for conditions associated with pregnancy.

The PWFA mandates that employers must provide reasonable accommodations to qualified employees or applicants who have a known “limitation” related to pregnancy, childbirth, or related medical conditions, unless it would create undue hardship for the business.  The “limitation” is not required to be of a specific severity; it can be minor, moderate, or episodic.  In fact, the PWFA covers conditions that do not rise to the level of disability as defined by the Americans with Disabilities Act.  The EEOC offers a nonexclusive list of medical conditions covered by this law, including some that may not be readily apparent to employers, such as infertility and fertility treatments, past pregnancies, endometriosis, menstruation, miscarriages, postpartum depression, lactation (including related conditions like low milk supply or mastitis), and more.

The newly proposed regulations outline accommodations that the EEOC deems inherently reasonable and hence, not necessitating formal documentation. A few examples of accommodations include:

• Job restructuring, such as temporarily suspending one or more essential functions of a job for those who cannot perform an essential function for a temporary period or adjusting or modifying examinations or policies;
• Providing more frequent breaks;
• Remote work;
• Providing light duty work;
• Modifying uniforms, equipment, or devices, including devices that assist with lifting or carrying for jobs that involve lifting and/or carrying;
• Reasonable accommodations related to lactation (i.e. breaks, space, etc.); and
• If available, providing reserved parking spaces.

The proposed regulations also identify a limited number of simple modifications that will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by an employee due to pregnancy. These include:

• Allowing an employee to carry water and drink, as needed in the employee’s work area;
• Allowing an employee additional restroom breaks;
• Allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
• Allowing breaks as needed to eat and drink.

If the limitation or the requested accommodation is evident, there will be no need for the employer and employee to engage in the interactive process.  In line with the foregoing, the employer cannot seek supporting documentation where the limitation or requested accommodation is evident.

Additionally, under the proposed regulations, a worker who has returned to work after childbirth can qualify for an accommodation that temporarily removes one or more essential job functions for up to 40 weeks.  The employer must reasonably accommodate the person’s inability to perform these essential functions, regardless of whether a similar or different accommodation was provided before or during the worker’s pregnancy.

As is the norm with proposed regulations, a 60-day window has been allotted during which the EEOC will actively seek and consider feedback, potentially leading to later revisions before the regulations attain their final form.  The EEOC expects to issue final regulations by December 29, 2023.  Over the coming months, employers should consider enhancing their current accommodation policies to include specific references related to pregnancy to prepare for the implementation of the proposed rule.

If you have any questions about the proposed regulations, please contact one of Honigman’s Labor and Employment attorneys.