EEOC Proposes PWFA Regulations

Employment Law

With the Pregnant Workers Fairness Act (PWFA) now in effect, the Equal Employment Opportunity Commission (EEOC) released a notice of proposed rulemaking (NPRM) to establish regulations for the law.

The PWFA—which took effect on June 27—requires employers with 15 or more employees to provide reasonable accommodations to qualified employees for a known limitation related to pregnancy, childbirth or related medical conditions, unless the accommodation would cause the employer an undue hardship.

Tasked with providing regulations, the EEOC’s NPRM provides definitions of relevant terms, including “temporary,” “essential functions,” and a broad definition of “pregnancy, childbirth or related medical conditions” that includes current, past and potential pregnancy; the use of birth control; lactation; menstruation; and the termination of pregnancy, including miscarriage and abortion.

To request an accommodation, an employee must identify the limitation and communicate that she needs an adjustment or change at work. The regulations do not require that the employee mention the PWFA by name or use specific language (such as “reasonable accommodation”).

An employer may request supporting documentation only if the act of requiring it and the documentation itself are reasonable, the EEOC said.

Employers must conduct an individualized assessment to determine whether a modification is a reasonable accommodation, the agency explained, but examples of modifications and reasonable accommodations that would not pose an undue hardship on an employer include allowing an employee to carry water and drink, as needed, in her work area; additional restroom breaks; other breaks, as needed, to eat and drink; and for a position that requires standing, permitting the employee to sit (and vice versa).

In addition, remote work, schedule changes, part-time work, paid or unpaid leave, changes to parking location, and other equipment modifications may also be reasonable accommodations, the EEOC said.

Employers still have an undue hardship defense, but—in a departure from the Americans with Disabilities Act (ADA)—the regulations contemplate the temporary suspension (which could be up to 40 weeks) of an essential function of a job as a potential accommodation under the law.

To read the NPRM, click here.

Why it matters: The EEOC is accepting public comment on the proposed regulations until October 10, and the agency asked for input on specific issues, such as whether more examples of reasonable accommodations should be provided and for what additional different situations. If adopted, the regulations will require employers to accommodate employees affected by pregnancy, childbirth or related medical conditions in ways even beyond what the ADA currently requires.



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