Pregnant woman at work

EEOC Proposes Rule on PWFA

By Douglas Lipsky

On August 11, 2023, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule on the Pregnant Workers Fairness Act (“PWFA”). The new law, which took effect June 27, 2023, requires covered employers to provide reasonable accommodations to qualified employees or candidates affected by pregnancy, childbirth, or related medical conditions absent undue hardship. 

The proposed rule clarifies the definition of a “qualified” individual under the PWFA, provides examples of possible accommodations, spells out potential violations, and may ultimately lead to more pregnancy discrimination claims. The public comment period closes on October 10, 2023, so a final rule will likely be issued by the end of 2023. In the meantime, let’s explore the proposed rule and your legal options if you have experienced pregnancy discrimination in the workplace.

The PWFA: New Rules

The PWFA is designed to close the gap in the federal legal protections for workers affected by a pregnancy, childbirth, or related medical conditions, even though they may have certain rights under existing civil rights laws, such as the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and various state and local laws. Key aspects of the EEOC’s proposed rule implementing the PWFA include: 

Expanded Definition of a “Qualified” Individual

The proposed rule clarifies that, unlike under the ADA, an individual may be “qualified” under the PWFA even if they cannot perform one or more essential functions of the job if:

  • The inability to perform the essential function is temporary
  • The essential function could be performed in the near future
  • The inability to perform the essential function can be reasonably accommodated

“In the near future” generally means 40 weeks from the temporary suspension of an essential function. The rule also clarifies that in some cases accommodating the essential function may require temporarily suspending one or more of the essential functions with or without reassignment to someone else.

Pregnancy-Related Medical Conditions Defined

The proposed rule broadly defines pregnancy-related medical conditions to include:

  • Pregnancy
  • Childbirth
  • Past pregnancy
  • Potential pregnancy
  • Lactation (including breastfeeding and pumping)
  • Use of birth control
  • Menstruation
  • Infertility and fertility treatments
  • Endometriosis
  • Miscarriage
  • Stillbirth
  • Having or choosing not to have an abortion

Additionally, other conditions include those that occurred prior but may be or have been exacerbated by pregnancy or childbirth.

Possible Accommodations Under the PWFA

Although employers are not required to provide accommodations that impose an undue hardship, the proposed rule notes the following four accommodations should be granted in “virtually all cases”:

  • Allowing a pregnant worker to carry water and drink in their work area, as needed
  • Providing additional restroom breaks
  • Allowing an employee whose work requires standing to sit or whose work requires sitting to stand
  • Providing meal and water breaks, as needed

Other accommodations for employers to consider include:

  • Job restructuring
  • Offering part-time or modified work schedules
  • Reassigning the employee to a vacant position
  • Acquiring or modifying equipment, uniforms, or devices, including devices that assist with lifting or carrying
  • Granting the use of paid leave or providing additional unpaid leave
  • Working remotely 
  • Temporarily suspending one or more essential job functions

Violations of the PWFA

The proposed rule also provides further context regarding acts prohibited under the PWFA, as follows:

Failing to Provide a Reasonable Accommodation

An employer violates the PWFA if it fails to provide an accommodation to a qualified individual with a known limitation absent undue hardship, as long as there was an accommodation the employer could have provided to the employee.

Unnecessary Delay in Responding to a Request for a Reasonable Accommodation

Unnecessary delaying an accommodation, particularly a request for one of the four necessary accommodations listed above. 

Unfairly Determining an Employee or Applicant is Unqualified 

An employer must consider whether it is possible to suspend the function that needs accommodation before determining whether an employee is or is not qualified.

The Takeaway

The Pregnant Workers Fairness Act and the anticipated EEOC rules add to the arsenal in the fight against pregnancy discrimination in the workplace. The best way for employers and employees to understand their rights and obligations under the new regulatory scheme is to consult an experienced employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.