EEOC Posts Proposed Rule to Implement the PWFA

Over a month after the Pregnant Workers Fairness Act (PWFA) went into effect, the U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed rule to implement the PWFA. The EEOC posted the proposed rule on August 7th, 2023. Subsequently, it will be published in the Federal Register on August 11. Then it will be open for public comment for 60 days following that date. The PWFA went into effect on June 27, at which point the EEOC began enforcing the law and issued guidance on pregnancy accommodations.

A Brief Overview of the PWFA

Effective June 27th, 2023, the PWFA extends the same protections under the Americans with Disabilities Act (ADA) to pregnant workers. These include the requirement of covered employers to provide reasonable accommodations to qualifying pregnant individuals or those with pregnancy-related conditions upon request. Like the ADA, the PWFA applies to employers with 15 or more employees on payroll. Under the PWFA, covered employers may not:

• require pregnant workers to identify similar accommodations granted to similarly-situated employees as a part of their request;
• force an eligible employee to take paid or unpaid leave in lieu of an accommodation;
• take any adverse action against an employee who exercises the law; or
• deny employees employment opportunities, promotions, or other benefits based on their need for pregnancy accommodations.

Proposed Rule to Implement the PWFA

Briefly, the proposed rule details how the EEOC will interpret and implement the PWFA and defines specific terms within the law. The proposed rule also provides examples of pregnancy accommodations and sample situations during which an employer would receive a request for accommodation from a qualified individual. In its proposed rule, the EEOC defined the following terms for employers:

• temporary – means that the need to suspend one or more essential functions is “lasting for a limited time, not permanent, and may extend beyond in the near future”
• essential functions – as under the ADA, the proposed rule defines this as “the fundamental duties of the job”
• communicated to the employer – means that the employee made known to the covered entity by communicating with a supervisor, manager, or human resources personnel of their need for reasonable accommodation through any one of several available means

In her August 7 statement, EEOC Chair Charlotte A. Burrows encouraged employers and the public to provide meaningful feedback about how the proposed rule to implement the PWFA would impact the workplace. Additionally, the EEOC requests other ways that they may assist employers in understanding the law. This includes providing additional examples of possible accommodations.