EEOC Issues Proposed Rule to Implement the Pregnant Workers Fairness Act
EEOC Issues Proposed Rule to Implement the Pregnant Workers Fairness Act
Donovan Estrada, Associate
On August 7, 2023, the EEOC issued a Notice of Proposed Rulemaking with proposed regulations for the implementation and enforcement of the Pregnant Workers Fairness Act (“PFWA” or the “Act”).[1] Among other things, the proposed regulations clarify certain definitions, detail accommodation processes under the Act with examples, and elaborate on the Act’s prohibitions against discrimination and retaliation under the Act.
The Pregnant Workers Fairness Act
The PFWA was signed into law by President Biden on December 29, 2022, with the goals of ensuring reasonable accommodations for affected pregnant workers to help them apply for a job, perform their roles effectively, enjoy equal employment benefits, and if necessary, temporarily suspend the performance of an essential job function. The Act was passed in response to perceived gaps in statutory protections under Title VII and the Americans with Disabilities Act (“ADA”). For example, under Title VII, a pregnant worker may secure workplace accommodations only if they can identify a similar individual who received such accommodations, or there is evidence of discriminatory treatment. Moreover, under the ADA, workers affected by pregnancy or related medical conditions must show that they are a qualified individual with a disability under the ADA; however, this standard does not include pregnancy status itself, but instead requires the showing of a pregnancy related disability.[2]
On August 7, 2023, the EEOC issued a Notice of Proposed Rulemaking to implement the PWFA. This proposed rule elaborates upon the protections offered by the PWFA by providing clear interpretations and guidelines for its application.
Key Features of the Proposed Regulations
Per the proposed regulations, the PWFA applies to employers, unions, employment agencies, current and former employees, and job applicants protected under certain federal laws, including Title VII. Notably, the PWFA requires employers to attempt to accommodate a diverse group of conditions beyond pregnancy. The EEOC's proposed regulations clarify that covered conditions include abortion, lactation, contraception use, and miscarriage. Moreover, the proposed regulations explain that the list of conditions covered is non-exhaustive, and to request an accommodation an employee or applicant need not specify a condition specifically listed in the proposed regulations.
Additionally, the proposed regulations dovetail with the recent passage of the PUMP Act, which the Rocky Mountain Employer recently discussed.[3] While the PUMP Act requires employers to provide a private, non-bathroom space for lactating employees to express breastmilk, the proposed PFWA regulations further detail the requirements for the location, hygiene, and amenities of such spaces. It underscores proximity to the employee's primary workspace, cleanliness, and specific facilities including electricity, seating, a surface for breast pumps, and access to a sink and refrigerator.
The proposed rules emphasize the necessity of dialogue between the employer and employee to determine suitable accommodations. Moreover, under the proposed rules, upon receiving an accommodation request, the covered employer must respond; straightforward needs should be promptly addressed, while more complex requests may involve an interactive dialogue and potential need for medical documentation, similar to ADA provisions governing the interactive process for disability-related accommodations.
Considerations for Employers
In light of the EEOC’s proposed regulations regarding the PFWA, employers should review their policies on accommodations for pregnant employees. Persons interested in commenting on these proposed regulations must submit comments to the Commission either electronically or by mail within 60 days of its publication in the Federal Register, which is expected to occur on or about August 11th. All received comments will be made publicly available, subject to certain restrictions.
[1] The proposed regulations may be found here: https://public-inspection.federalregister.gov/2023-17041.pdf.
[2] 42 U.S.C. 12102(2) & (4); 29 CFR part 1630 app. 1630(h); EEOC, Enforcement Guidance on Pregnancy Discrimination and Related Issues II (2015), https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues.
[3] https://www.rockymountainemployersblog.com/blog/2023/5/25/the-federal-pump-act-and-its-application-to-colorado-employers