Proposed Regulations for Pregnant Workers Fairness Act Issued

The U.S. Equal Employment Opportunity Commission (EEOC) posted a notice of proposed rulemaking on Monday to implement the Pregnant Workers Fairness Act (PWFA)—a law that requires employers to make reasonable changes in the workplace to support employees who have pregnancy-related limitations.

The proposed rule will be available for public comment in the Federal Register on Aug. 11.

"The EEOC's bipartisan proposed regulation helps to bring the promise of this transformative law to life, enabling pregnant and postpartum workers to retain their jobs while maintaining a healthy pregnancy and recovering from childbirth," EEOC Vice Chair Jocelyn Samuels said in a statement. "The regulation provides concrete, real-world examples that help workers understand their rights and help employers comply with the new law and reap the benefit of retaining skilled employees."

Proposed Regulations Expand Scope of Protections for Pregnant Workers

The PWFA, which took effect on June 27, requires covered employers to provide reasonable accommodations to a worker's known limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship.

Theodore E. Bacon, an attorney at Frost Brown Todd in San Francisco, said the PWFA was promulgated to fill gaps in existing law. For example, courts typically have only found in favor of claims for workplace modifications arising from pregnancy-related conditions:

• If the worker can identify another individual similar in their ability or inability to work who received such an accommodation, or
  
• If there is direct evidence of disparate treatment, such as a biased comment or a policy that, on its face, excludes pregnant workers.
  

However, there may not always be similarly situated employees, Bacon said. For this reason, some pregnant workers have not received simple, common-sense accommodations, such as a stool for a cashier or bathroom breaks for a preschool teacher.

"The new regulations provide definitions of key language in the PWFA such as 'temporary,' 'essential functions,' and 'communicated to the employer,' " Bacon said. "The EEOC uses the term 'uncomplicated' pregnancy rather than 'healthy' or 'normal,' which again expands the scope of protection."

The document also provides examples of possible reasonable accommodations, including:

• Job restructuring.
• Part-time or modified work schedules.
• More-frequent breaks.
• Unpaid leave, including to attend health care-related appointments and to recover from childbirth.
• Assignment to light duty.
  
• Telework.

Further, the EEOC seeks comment from employers as to other possible accommodations, and requests information regarding the cost of accommodation. Public comments will be open for 60 days from the date of publication.

[SHRM Resources and Tools: What You Need to Know About Pregnancy Discrimination and Accommodations]

How Companies Can Prepare to Implement PWFA

Linda B. Hollinshead, an attorney at Duane Morris LLP in Philadelphia, suggested that employers update their accommodations policy to include known limitations related to, affected by or arising out of pregnancy, childbirth or related medical conditions, even when the employee is not disabled.

"The policy should also specifically inform employees on how to request accommodations and that accommodation requests are subject to the interactive process and will not be available if they constitute an undue hardship," she said. "Employers with employees in jurisdictions with existing pregnancy accommodation protections under state or local law should similarly review their policies to update for the requirements of the PWFA, companywide."

She said employers should also:

• Educate managers and supervisors on obligations under the PWFA―including how to respond to employee accommodation requests and engage in the interactive process to determine whether requested accommodations are reasonable.
  
• Inform managers and supervisors that the company cannot require an employee to take leave in lieu of providing another reasonable accommodation.
• Modify their nonretaliation policies to include prohibiting retaliation related to requesting accommodations for pregnancy, childbirth and related medical reasons.

Bacon said the EEOC's proposed regulations are a good source for companies to review in determining what is reasonable. However, he explained that the examples presented in the document cannot be relied upon until regulations are finalized.

"So, for the time being, the best practice for employers is to grant any reasonable accommodations requested by pregnant and postpartum employees and to consult legal counsel before denying any seemingly unreasonable accommodations," Bacon said.

He added: "While accommodations need not be granted if they cause undue hardship, employers should be very careful about relying on that exception, as it is very narrowly construed, especially since PWFA accommodations will likely be relatively short in duration."

The EEOC previously released resources on the PWFA, including a webinar for employers, an informational poster, tips for workers to request accommodations, a short video series and an updated "Know Your Rights" poster required to be posted in most workplaces.