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EEOC Takes Step to Implement Regulations Around Workplace Pregnancy Accommodations

    Client Alerts
  • August 10, 2023

Last year, Congress passed the Pregnant Worker Fairness Act (PWFA). The new law is intended to assist pregnant employees with continuing their jobs until, and in some cases, beyond delivery. Patterned in part on the Americans with Disabilities Act, PWFA requires employers to provide reasonable accommodations that allow pregnant employees to perform their job functions. This week, the Equal Employment Opportunity Commission (EEOC) issued proposed regulations intended to explain those requirements and general employee rights under the new law.

The rules use concepts familiar under the ADA such as qualified individuals, essential job functions, reasonable accommodation, and undue hardship. While the EEOC largely incorporates ADA concepts into the definition of these terms, PWFA’s accommodation obligations differ in some important ways from those under the disability rights statute. 

Here are some key differences:

  1. The definition of a protected worker under PWFA goes well beyond pregnant employees. The statute also covers a wide range of medical conditions relating to pregnancy and childbirth. The EEOC includes conditions such as fertility treatments, abortion services, post-partum depression, conditions associated with birth control use, and lactation issues under this definition. The employee does not have to demonstrate any specific level of severity for these medical conditions to be included in the Act’s accommodation obligations.
  2. Under the ADA, reasonable accommodations are only required when they allow the employee to perform the essential functions of their job. Under PWFA, an accommodation can be required even if the worker is temporarily unable to perform some of those essential functions. Temporary means generally 40 weeks (the normal gestation period), but can be longer for issues such as depression. The employer must accommodate an employee unable to perform some essential job functions unless it can demonstrate an undue hardship.
  3. The EEOC says that certain accommodations, such as increased breaks and allowing a pregnant employee to sit or stand will be considered reasonable in “virtually all cases,” placing a high burden of proof on employers that deny such requests.
  4. The EEOC notes the need for employers to make quick decisions in response to accommodation requests. Undue delay will be considered tantamount to a denial of the accommodation.
  5. Under PWFA, medical leave is not viewed as an equivalent substitute to measures that keep the employee at work.

The EEOC is accepting comments on the new rules for 60 days. PWFA took effect June 27, and even though the regulations are not in place, employers can face EEOC charges based on the language of the statute itself. Employers should review their accommodation policies and make modifications where needed to account for these new requirements.