EEOC Unveils Proposed Pregnant Workers Fairness Act Regulations

Author: Emily Scace, Brightmine Legal Editor

August 7, 2023

The Equal Employment Opportunity Commission (EEOC) has unveiled proposed regulations to implement the Pregnant Workers Fairness Act (PWFA), a landmark federal law expanding employees' rights to obtain reasonable accommodations at work for pregnancy, childbirth and related medical conditions.

The PWFA, which took effect June 27, requires covered employers to reasonably accommodate employees' and applicants' known limitations that result from pregnancy, childbirth and related medical conditions, unless an accommodation would impose an undue hardship on the employer. Signed in December 2022, the PWFA directed the EEOC to issue regulations implementing the law by December 29, 2023.

According to the proposed regulations, a pregnancy-  or childbirth-related limitation means a physical or mental condition related to, affected by or arising out of childbirth or a related medical condition. The limitation need not meet the definition of a disability under the Americans with Disabilities Act (ADA) to qualify for protection under the PWFA. Covered limitations can include:

  • A physical or mental impediment or problem that is modest, minor and/or episodic;
  • A need or problem related to maintaining the individual's own health or the health of the pregnancy; or
  • A worker seeking health care related to pregnancy, childbirth or a related medical condition.

The proposed definition of pregnancy, childbirth or related medical condition is similarly broad, encompassing current pregnancy, past pregnancy, potential or intended pregnancy, labor, childbirth, termination of pregnancy, infertility, fertility treatment, use of birth control, lactation and many associated health conditions.

The proposed regulations clarify that an employee or applicant, or their representative, must communicate a covered limitation under the PWFA to the employer for it to be considered a known limitation entitled to reasonable accommodation. However, an employer cannot require a specific format or method for this communication. The employee or applicant need only communicate to a supervisor, manager or human resources representative - or another designated point of contact - that they have a limitation and need an adjustment or change at work. Employers may develop a designated process for requesting accommodations but may not treat requests that do not follow this process as not having been communicated.

Undue hardship under the regulations means significant difficulty or expense, when considered in light of:

  • The nature and cost of the accommodation;
  • The financial resources of the facility involved in providing the accommodation;
  • The employer's overall financial resources;
  • The employer's operations and the composition of its workforce; and
  • The impact of the accommodation on the operation of the facility, including the impact on other employees' ability to perform their duties and the facility's ability to conduct business.

Although employers need not provide an accommodation that would impose an undue hardship, the regulations specify that certain accommodations will virtually never be considered to impose such a burden. These accommodations are:

  • Allowing an individual to carry water and drink as needed during the workday;
  • Allowing additional restroom breaks;
  • Allowing an individual whose work requires standing to sit and allowing an individual whose work requires sitting to stand; and
  • Allowing an individual breaks as needed to eat and drink.

An unnecessary delay in responding to a reasonable accommodation request may be considered a violation of the PWFA, even if an employer eventually provides the accommodation.

Along with the text of the proposed regulations, the proposed rule includes an appendix containing detailed interpretive guidance and describing a number of example scenarios of possible covered limitations and reasonable accommodations.

Interested parties will have 60 days from the publication of the proposed rule in the Federal Register, scheduled for August 11, to submit comments.