The U.S. Equal Employment Opportunity Commission (“EEOC”) published new proposed regulations on Friday, August 11, to implement the new Pregnant Workers Fairness Act (“PWFA”), signed into law at the end of December 2022. The PWFA requires covered employers to offer “reasonable accommodations” to applicants and employees to address health issues related to pregnancy or childbirth, so long as the accommodation does not cause an “undue hardship” on the operation of the covered employer’s business. The PWFA applies to all private and public sector employers with at least 15 employees and expands existing protections under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (“ADA”). However, pregnancy itself is not a “disability” under the ADA, so the law marks a significant expansion in worker protections.
The PWFA took effect on June 27, 2023, and the EEOC has begun accepting charges of discrimination from applicants and employees alleging violations of the PWFA. While the EEOC has released some tips for employers and employees on navigating the PWFA accommodation process, the proposed rule more formally details how the EEOC will actually enforce the new law. The agency rulemaking process generally takes several months to complete, and President Biden gave the EEOC one year from the PWFA’s enactment to issue final regulations, so the rules should be in place later this year.
Public comments can be submitted for 60 days from the proposed rule’s publication, via regulations.gov and searching for 3046-AB30. The law passed both the House and Senate by broad bipartisan margins, and EEOC Commissioners from both parties support the law, so the final rule will likely look a lot like last week’s proposed rule. As a reminder, it is already illegal under other laws to fire or otherwise discriminate against pregnant employees; the real change from the PWFA and these upcoming rules is in the expanded “accommodation” process for employees, both during pregnancy and post-partum.
Some of the potential accommodations discussed in the proposed rule include: part-time or modified work schedules, more frequent breaks, allowing seating for jobs requiring standing (or vice versa), assignment to light-duty work or telework, and possibly changes to policies to allow employees to use paid leave for medical appointments. The general “interactive process” for reasonable accommodation requests under the ADA will be the core framework for the PWFA rules, once implemented.
If you have any questions regarding the new law, the upcoming rules, or navigating the interactive accommodation process with employees, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.