Employment Tip of the Month – October 2023

Q: What should employers do since the EEOC is now accepting claims under the Pregnant Workers Fairness Act?


A: On August 11, 2023, the EEOC announced that it was issuing a proposed rule to implement the Pregnant Workers Fairness Act (PWFA). This Act requires a covered entity to provide reasonable accommodations to “a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” The only exception to this provision is if it “will cause undue hardship on the operation of the business of the covered entity.” See https://www.federalregister.gov/documents/2023/08/11/2023-17041/regulations-to-implement-the-pregnant-workers-fairness-act

Interested employers can provide comments on the EEOC's proposed regulations electronically by accessing the federal e-rulemaking portal at http://www.regulations.gov, which is open to the public for comment through October 10, 2023.

In adopting this Act, the EEOC stated: 

“Under the PWFA, as set forth fully below, coverage is the same as Title VII and the ADA, and reasonable accommodations are available to help apply for a job; to perform a job; to enjoy equal benefits and privileges of employment; and to temporarily suspend the performance of an essential function of a position, if certain conditions are met. Importantly, the PWFA allows workers with uncomplicated pregnancies to seek accommodations, recognizing that even uncomplicated pregnancies may create limitations for workers.” See https://www.regulations.gov/document/EEOC-2023-0004-0001

The EEOC also noted: 

“Once the need for an accommodation has been communicated, the covered entity must respond to the request. If the need is straightforward and can be easily accommodated (e.g., providing a stool for a pregnant cashier, or allowing a pregnant worker to carry a bottle of water with them and to drink as needed), the entity should act quickly and provide the accommodation. If the entity has questions or wants to explore different reasonable accommodations, the covered entity and the employee can engage in the interactive process by, for example, having an informal conversation about the employee's needs and possible accommodations. For accommodations that require more information, the entity may need to analyze the essential functions of the job and may, when necessary and permitted under the proposed PWFA rules described below, request reasonable medical documentation. In general, these steps should be familiar to covered entities, as they are similar to the reasonable accommodation provisions, including the interactive process, of the ADA.” Id.

The employer should publish a Notice in a format suggested by the United States Department of Labor in order to alert all employees of this new Act. See https://www.justice.gov/d9/2023-06/employment_litigation_section_fact_sheet_pregnant_workers_fairness_act_0.pdf

The EEOC enforces claims under the PWFA and began accepting claims on June 27, 2023. Employers should not assume that a pregnant worker needs accommodations such as removing job responsibilities or restructuring an employee’s workload where a limitation either does not truly exist or has not been identified by the employee to the employer. Such actions could in fact be discriminatory and an interactive process between the employer and employee should be undertaken.

© 2024 Wilson Elser
National Law Review, Volumess XIII, Number 276