EEOC proposes expansive Pregnant Worker Act rule  

By Pat Murphy  

The newly proposed rule to implement the federal Pregnant Workers Fairness Act paints an employee’s right to a reasonable accommodation with a broad brush while maintaining a firm standard for the employer’s burden of showing that a particular request would constitute an undue hardship. 

The U.S. Equal Employment Opportunity Commission announced the proposed rule Aug. 7. Its publication in the Federal Register on Aug. 11 triggered a 60-day public comment period. 

The EEOC’s notice of proposed rulemaking provides numerous examples of possible reasonable accommodations while explaining how the commission intends to interpret the PWFA and certain terms in the statute, such as “temporary,” “essential functions” and “communicated to the employer.”  

“The EEOC’s bipartisan proposed regulation helps to bring the promise of this transformative law to life, enabling pregnant and postpartum workers to retain their jobs while maintaining a healthy pregnancy and recovering from childbirth,” EEOC Vice Chair Jocelyn Samuels said in a statement. 

President Joe Biden signed the PWFA into law on Dec. 29, 2022, and it went into effect June 27, 2023, at which time the EEOC began accepting charges. 

The statute requires covered employers to provide reasonable accommodations to a qualified employee’s “known limitations” related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” 

Under 42 U.S.C. § 2000gg(2)(B)(i), the PWFA defines a “covered entity” as including employers engaged in an industry affecting commerce with 15 or more employees. 

Section § 2000gg(4) defines the term “known limitation” as meaning a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions that the employee or employee’s representative has communicated to the employer,” whether or not such condition meets the definition of disability under the Americans with Disabilities Act. 

Under Section 42 U.S.C. §2000gg(6), a “qualified employee” includes not only an individual who, with or without reasonable accommodation, can perform the essential functions of the job. The statute’s three-requirement test further provides that a person may be “qualified” if:  

• Any inability to perform an essential function is for a temporary period. 
• The essential function may be able to be performed in the near future. 
• Any inability to perform the essential function can be reasonably accommodated. 

State-law deference 

In limiting the reach of the PWFA with respect to state pregnancy discrimination laws, Section 2000gg-5(a) provides that nothing in the statute shall be construed “to invalidate or limit the powers, remedies, and procedures under any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions.” 

 The PWFA’s anti-retaliation provision, §2000gg-2(f), prohibits discrimination against an employee who opposed an unlawful practice as well as coercion or intimidation of an individual that “aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.” 

Reasonable accommodation 

The EEOC’s proposed rulemaking would add Part 1636 in amending 29 C.F.R. Chapter XIV. 

Section 1636.3 of the proposed regulation elaborates on the definition of “known limitation,” explaining that “known” means that the limitation is communicated by the employee or their representative to the employer, and “limitation” as meaning a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” including conditions which may be “modest, minor, and/or episodic.” 

The proposed regulation also makes clear that a medical condition relating to childbirth or pregnancy includes a wide range of conditions, including fertility treatment, postpartum depression, frequent urination, the use of birth control, and lactation. 

Meanwhile, §1636.3(i) of the proposed regulation provides a non-exhaustive list of reasonable accommodations that may be required of an employer, including job restructuring, part-time or modified work schedules, reassignment to a vacant position, extra work breaks, providing devices to help with lifting and providing seating for jobs 

that require standing. 

Section 1636.3(j) of the proposed rule provides detailed guidelines for assessing undue hardship under the PWFA. The rule defines undue hardship as “significant difficulty or expense incurred” by the employer in terms of providing an accommodation, weighing factors such as the cost, the financial resources of the employer and the impact of an accommodation on the company’s operations. 

Section 1636.4(a)(1) makes clear that an “unnecessary delay” in responding to a reasonable accommodation request may result in a violation of the PWFA. 

Notably, §1636.4(a)(3) of the proposed rule states that a covered entity “cannot justify the denial or delay of a reasonable accommodation based on an employee or applicant failing to provide supporting documentation, unless requiring the supporting documentation is reasonable under the circumstances for the covered entity to determine whether to provide the accommodation.”