On August 11, 2023, the Equal Employment Opportunity Commission (“EEOC”) released a proposed rule to establish regulations enforcing the Pregnant Workers’ Fairness Act (“PWFA”). The PWFA took effect on June 27, 2023, and requires employers with 15 or more employees to provide certain accommodations to qualified employees with limitations due to pregnancy, childbirth, or other related medical conditions.
The proposed rule heavily mirrors concepts from the Americans with Disabilities Act (“ADA”), including the definitions of “undue hardship,” “essential job functions,” “interactive process,” and “reasonable accommodation.” Employers will likely be able to use their ADA procedures to engage pregnant workers in the interactive process. There are, however, a few key differences between the ADA and the PWFA.
First, the EEOC defines a “qualified employee” as “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.” Importantly, under the proposed rule, employees can be qualified even if they are not able to perform one or more essential job functions. In this scenario, the inability to fulfill the job function(s) must be a direct result of the pregnancy-related condition and the inability is temporary, meaning the employee will be able to perform the function in the near future. The EEOC considers “in the near future” as within forty weeks. However, these forty weeks do not consist of the entire time period for accommodations. For example, an employee may not be able to fulfill Job Duty A during forty weeks of pregnancy. After giving birth, that employee may be able to fulfill Job Duty A, but not Job Duty B. In this case, they would have an additional forty weeks to be able to fulfill Job Duty B.
Additionally, the EEOC considers a variety of medical conditions to be pregnancy-related, including infertility and fertility treatments, past pregnancy, endometriosis, birth control use, menstruation, miscarriage, stillbirth, abortion (and the process of choosing not to have one), lactation and lactation-related conditions, and post-pregnancy limitations or complications. The EEOC includes an extensive list of acceptable reasonable accommodations for these conditions.
The proposed rule is open for public comments until October 10, 2023. The EEOC is expected to enact a final rule fairly quickly after the close of the comment period, as final regulations must be enacted December 29, 2023. Although employers may be able to use existing policies and procedures to comply with the PWFA and EEOC regulations, they should start preparing now to strengthen policies, review definitions, and begin identifying potential reasonable accommodations.
If you have questions or concerns about employer obligations under the PWFA, please do not hesitate to reach out to any member of Gardner Skelton’s healthcare team.