We promised to keep you updated with the EEOC’s proposed regulations for the Pregnant Workers Fairness Act (PFWA). Per its website, the EEOC is publishing the proposed regulation on August 11, 2023, and you have until October 10 to provide input. 

A Note Regarding Public Comment  

Earlier this week, the EEOC posted a Notice of Proposed Rule Making for the PWFA to its website. The notice indicates the EEOC will publish the proposed regulations on August 11. Once published, the public has 60 days (until October 10) to provide input. If you do not want to wait to read the published version, you may find the unpublished version of the regulations here. (The same link will provide you with the published version as soon as it is available).  

There are four ways to submit your comments:

1. via Federal eRulemaking Portal at https://www.regulations.gov;
2. via Fax to 202-663-4114 (restrictions apply);
3. via Mail to Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507;
4. via Hand Delivery/Courier sent to Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507

Now to the Regulations

The 275-page pdf containing the regulations has a lot to unpack, but the EEOC also published a Summary of Key Provisions for the PWFA, which highlights coverage, remedies, definitions, accommodation requests, prohibited acts, and the PWFA’s relationship to other laws.

Here are a few key takeaways:

• Application. The PWFA applies to public or private employers with 15 or more employees and to certain federal government employees.
• Enforcement. The PWFA enforcement procedures are similar to the those for Title VII (i.e. employees, applicants, or former employees may file a charge with the EEOC).
• Qualified Employee. Unlike the ADA, the PWFA allows an employee or applicant to be “qualified” even if they cannot perform one or more essential functions of the job so long as:
  • The inability to perform the essential function is temporary
  • The employee could perform the essential function in the near future (generally, 40 weeks but it could be longer and it could restart upon the employee’s return from leave if another accommodation is needed); and
  • The employer is able to reasonably accommodate the employee’s inability to perform the essential function without undue hardship.   
• Pregnancy, Childbirth, and other Related Medical Conditions. There is no level of severity required for the condition the employee is experiencing. Outside of obvious pregnancy conditions, “related medical conditions” also include, but are not limited to:
  • termination of pregnancy (including miscarriage, stillbirth, or abortion);
  • infertility;
  • fertility treatment;
  • pelvic prolapse;
  • nerve injuries;
  • nausea or vomiting;
  • endometriosis;
  • changes in hormone levels;
  • menstrual cycles; and
  • use of birth control.
• Requesting an Accommodation. The employee must (1) identify the limitation, (2) the limitation it must relate to, affect, or arise out of pregnancy, childbirth, or a related medical condition, and (3) the employee must indicate that they need an adjustment or change at work. An employee does not have to put the request in writing and may simply come up in a conversation with the employer.
• Medical Certification. It is best to avoid requiring documentation for PWFA requests as it is only permitted if you have reasonable concerns about whether the condition or limitation is related to, affected by, or arising out of pregnancy, childbirth, or related medications. In fact, the EEOC’s summary notes that the Commission expects most determinations to “be a straightforward determination that can be accomplished through a conversation between the employer and the employee” and without the need for additional documentation.

While the regulations are not yet final and the public comments may or may not change the final regulations, it would not hurt to start preparing and avoid potential traps until official guidance is published.  Here are a few ways to do that:  

• Once an employee brings up the need for accommodation, do not delay in responding. Make sure your front-line supervisors (who might be the ones who get requests) know that they need to get HR involved sooner rather than later.
• Do not request documentation relating to the condition unless you have reasonable concerns about the employee’s condition.  
• Implement policies and train your supervisors and managers on the PWFA.