On August 7, 2023, the EEOC announced its proposed regulations relating to the enforcement of the Pregnant Workers Fairness Act (“PWFA”).  Passed in 2022, the PWFA requires employers to provide reasonable accommodations to workers affected by pregnancy, childbirth or a related medical condition.

The proposed regulations seek to provide needed guidance for employers as to the EEOC’s interpretation of the PWFA.  For example, when determining if an employee is “qualified” under the PWFA, the proposed regulations provide that the analysis can be the same as that undertaken to determine if an employee is “qualified” under the Americans with Disabilities Act.  The EEOC also proposes a second, separate analysis—an employee can be considered qualified if (1) the employee’s inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function could be reasonably accommodated.

Additionally, the proposed regulations are meant to provide practical guidance for employers of possible reasonable accommodations, including:

•  job restructuring or creating part-time or modified work schedules or assigning to light duty;

• offering frequent breaks;

• acquiring or modifying equipment, uniforms or devices;

• allowing seating for jobs that require standing or standing in jobs that require sitting;

• adjusting or modifying examinations or policies;

• permitting the use of paid leave or providing unpaid leave, including to attend healthcare- related appointments and to recover from childbirth;

• permitting telework; and

• accommodating a worker’s inability to perform one or more essential functions of a job by temporarily suspending the requirement, if the inability to perform the essential function is temporary and the worker could perform the essential function in the near future.

Included with the proposed regulations are scenario-specific examples of actions or omissions that might implicate the PWFA.  For example, if a pregnant employee informs her employer that she finds it difficult to start work at her scheduled start time due to morning sickness, the employer is on notice that a reasonable change should be made to her work situation because morning sickness is a physical condition related to pregnancy.

The proposed regulations are set to be published in the federal register on Friday, August 11, 2023, at which time the public will have 60 days to comment.  Employers may wish to comment on specific examples of reasonable accommodations and seek clarification that they will not face liability if they do implement these accommodations.   

Because the EEOC is responsible for enforcement of the PWFA, the proposed regulations are welcome guidance for employers.