By Dawn S. Holiday

The Pregnant Workers Fairness Act (“PWFA”) was signed into law by President Biden on December 29, 2022, and became effective on June 27, 2023. The PWFA requires employers with 15 or more employees to provide “reasonable accommodations” for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. When the PWFA was signed into law, Congress directed the U.S. Equal Employment Opportunity Commission (“EEOC”) to issue regulations to implement the PWFA by the end of this year. On August 7, 2023, the EEOC released its 275-page Notice of Proposed Rulemaking (“NPRM” or the “proposed rule”) to implement the PWFA and seeks public comments on the proposed regulations.

The proposed rule seeks to provide necessary and practical guidance to employers and delivers a detailed discussion of various aspects of the PWFA and its purpose. This article, however, is intended to only address certain provisions of the proposed rule.

Broad Definition of Terms

• The proposed rule uses the following non-exhaustive list to define “pregnancy, childbirth, or related medical conditions”: “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 things.” This expanded definition may require employers to review workplace accommodations and leave policies to incorporate new definitions, considerations, and obligations, as necessary.
• “Limitation” is broadly defined to mean a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Under the proposed rule, the physical or mental condition required to trigger the obligation to provide a reasonable accommodation under the PWFA does not require a specific level of severity. Thus, workers with normal and healthy pregnancies will be able to seek reasonable accommodations under the PWFA.
• It is important to note that the PWFA adopts two (2) definitions of a “qualified” employee. When determining whether an employee is “qualified” under the PWFA, the proposed rule provides that the analysis can be the same as that undertaken to determine if an employee is “qualified” under the Americans with Disabilities Act. The PWFA allows a second, separate analysis such that an employee can be “qualified” even if they cannot perform one or more essential functions of the position in question if: (1) the employee’s inability to perform the essential function(s) is for a temporary period; (2) the essential function(s) could be performed in the near future; and (3) the inability to perform the essential function(s) can be reasonably accommodated. Practically speaking, for some positions, this may mean that one or more essential functions are temporarily suspended, with or without reassignment to someone else, and the employee continues to perform the remaining functions of the job.
• The PWFA did not define “temporary” or “in the near future,” so the proposed rule defines “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” The proposed definition of “in the near future” is “generally 40 weeks from the start of the temporary suspension.” The proposed rule states that the “actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires, and the employer always has available the defense that it would create an undue hardship.”

Reasonable Accommodation Examples

Further, the proposed regulations aim to provide practical guidance for employers when considering reasonable accommodations.

• The non-exhaustive list of possible reasonable accommodations that a worker may seek under the PWFA includes: job restructuring; part-time or modified work schedules; more frequent breaks; acquisition or modification of equipment, uniforms, or devices; allowing seating for jobs that require standing or standing in jobs that require sitting; appropriate adjustment or modification of examinations or policies; permitting the use of paid leave (whether accrued, short-term disability, or another type of employer benefit) or providing unpaid leave, including to attend health-care related appointments and to recover from childbirth; assignment to light duty; telework; and accommodating a worker’s inability to perform one or more essential functions of a job by temporarily suspending the requirement that the employee perform that function, if the inability to perform the essential function is temporary and the worker could perform the essential function in the near future.
• The proposed rule adds a “predictable assessment” paragraph under the Undue Hardship section that provides examples of simple modifications that will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship: (1) allowing an employee to carry water and drink, as needed, in the employee’s work area; (2) allowing an employee additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee breaks, as needed, to eat and drink.

Prohibited Acts

There are five (5) prohibited acts detailed in the proposed rule:

• Denying a qualified employee or applicant with a known limitation a reasonable accommodation, absent undue hardship;
• Requiring a qualified employee or applicant to accept an accommodation other than one arrived at through the interactive process;
• Denying employment opportunities if the denial is based on the employer’s need to make a reasonable accommodation for the known limitation of the employee or applicant;
• Requiring a qualified employee with a known limitation to take leave, either paid or unpaid, if another effective reasonable accommodation exists, absent undue hardship; and
• Taking an adverse action against a qualified employee because of the employee’s request or use of a reasonable accommodation for a known limitation.

What Happens Next?

The proposed rule was posted by the Federal Register for public inspection on August 7, 2023 and will be published in the Federal Register on August 11, 2023. The public will have 60 days from the publication date of the NPRM to provide comments. The NPRM is available for public inspection at https://www.federalregister.gov/d/2023-17041.

Employers should take the time to review and comment on the proposed rule. Specifically, the EEOC wants to know whether there should be more examples and for what different situations. The agency is also seeking existing data quantifying the proportion of pregnant workers who need workplace accommodations and existing data on the average cost of pregnancy-related accommodations.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For more information on the Pregnant Workers Fairness Act (PWFA), please contact Dawn S. Holiday or a member of the Labor and Employment practice.

Meet Dawn

Dawn S. Holiday focuses on labor and employment law litigation, representing corporations in disputes involving discrimination, harassment, wrongful termination, wage and hour, non-competition, trade secret and workplace investigation claims. Dawn has been recognized among Thomson Reuters’ “Super Lawyers – Rising Stars,” “Who’s Who in Black Houston,” the National Bar Association’s “Top 40 Under 40,” and Lawdragon’s “500 Leading U.S. Corporate Employment Lawyers.” Dawn has also been recognized among the National Black Lawyers “Top 100” for three consecutive years.

Outside of her law practice, through various organizations, Dawn is on mission to advance equality for women and underrepresented attorneys in the legal profession. She is highly regarded and has an outstanding reputation amongst her peers, as well as the recipient of many prestigious awards and recognitions for her legal expertise, leadership and community service.