EEOC Set to Issue Final Rule Implementing the Pregnant Workers Fairness Act on December 29, 2023
Donovan Estrada, Associate
The Rocky Mountain Employer previously discussed the Equal Employment Opportunity Commission’s (“EEOC”) Proposed Rule to implement the Pregnant Workers Fairness Act[1] (the “Act”) which was signed into law on December 29, 2022, and became effective on June 27, 2023. The EEOC is now poised to issue its Final Rule on the Act on December 29, 2023, after receiving more than 100,000 comments on the provisions and requirements set forth in the rule.
The Act and its Coverage under the Proposed Rule
The Act requires reasonable accommodations for employees and job applicants who have “known limitations”[2] stemming from pregnancy, childbirth, or related medical conditions. A limitation is not considered a “known limitation” if the employee has not communicated the limitation to her employer.
Similar to the Americans with Disabilities Act (“ADA”), a covered entity is not required to provide an accommodation under the Act that would cause undue hardship, i.e., impose significant difficulty or expense on its operations.[3] Examples of possible reasonable accommodations to employees, includes such things as being given the chance to sit or drink water; to receive closer parking; to receive appropriately sized uniforms and safety apparel; to be excused from strenuous activities; etc.[4]
The Comments Submitted in Response to the EEOC’s Proposed Regulations
The EEOC received more than 100,000 comments on the Proposed Rule. A significant number of these comments highlighted concerns about the provision that would allow employees up to 40 weeks of leave from performing their core job functions during pregnancy, and allow them to restart the 40-week period after the pregnancy ends if the employee needs a separate pregnancy related accommodation, such as for postpartum depression.[5] Several commentors opposed the possibility of employees potentially being excused from performing core job functions for up to 80 weeks (1.5+ years), arguing this outcome alone would be an undue burden. Commentors also expressed concern with the concept of “interim accommodations” – which are temporary adjustments or support for employees who suddenly experience limitations due to pregnancy-related conditions – before the interactive process for accommodations has been completed.
Another common concern raised in the comments is the expansive definition of “related medical conditions”—which would include a person seeking fertility treatments prior to becoming pregnant and needing to take leave as a result since that would be a medical condition related to pregnancy or childbirth. Inclusion of abortion as a related pregnancy condition also received significant attention and involved anti-abortion comments such as “[t]he text of the PWFA does not mention abortion and the Equal Employment Opportunity Commission cannot pretend it does;” “[t]he administration has no legal authority to simply create abortion requirements on a whim;” and “[t]he proposed regulations must be revised to remove all references to abortion.”[6]
Employer Considerations
Given that the deadline for the EEOC to issue its Final Rule on the Act is just over two weeks away, prudent employers should evaluate their policies governing accommodations for pregnant employees and those with medical conditions related to pregnancy or childbirth to ensure they are ready to adapt to the Final Rule.
Campbell Litigation is available to assist employers with navigating the complexities of the new regulations and to help develop compliant, effective accommodation policies.
[1] 42 U.S.C. § 2000gg; https://www.rockymountainemployersblog.com/blog/2023/8/10/eeoc-issues-proposed-rule-to-implement-the-pregnant-workers-fairness-act.
[2] “Known limitation” means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee has communicated to the employer. 42 U.S.C. § 2000gg(4).
[3] 42 U.S.C. § 2000gg-2(g).
[4] https://www.congress.gov/117/crpt/hrpt27/CRPT-117hrpt27.pdf.
[5] Regulations To Implement the Pregnant Workers Fairness Act, 88 FR 54714-01
[6] https://www.regulations.gov/document/EEOC-2023-0004-0001/comment