September 11, 2023

Enacted as a provision of the Consolidated Appropriations Act, 2023 (CAA ’23), the PWFA generally requires covered employers with 15 or more employees to provide reasonable accommodations to an employee’s known limitation related to pregnancy, childbirth, or related medical conditions – unless the accommodation will cause an undue hardship to the employer. The law builds upon existing protections against pregnancy discrimination under Title VIII of the Civil Rights Act and access to reasonable accommodations under the Americans with Disabilities Act (ADA).

The NPRM explains how the EEOC proposes to implement the PWFA and includes definitions of applicable terms in the statute, such as “temporary,” “essential functions,” “reasonable accommodations,” “known limitations”, and “undue hardship.” The NPRM also describes the processes by which an employee would request reasonable accommodations, which are similar to existing ADA processes.

The proposed rule includes examples of possible reasonable accommodations, and the EEOC requests comments on whether the EEOC should provide more examples and for different scenarios. The examples included in the NPRM include modifications that the EEOC expect to meet the definition of reasonable accommodation in virtually all cases, such as:

• Allowing an employee to carry water and drink, as needed, in the employee’s work area;
• Allowing an employee additional restroom breaks;
• Allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
• Allowing an employee breaks, as needed, to eat and drink.

The NPRM further outlines the types of actions the PWFA prohibits employers from taking in response to requests for reasonable accommodations, absent undue hardship, such as denying employment opportunities if the denial is based on the employee’s need for a reasonable accommodation for a known limitation, and requiring an employee to accept an accommodation other than the one the employer and employee jointly arrived at through the interactive process outlined in the NPRM.

The NPRM includes a broad, but non-exhaustive, list of “related medical conditions” for which the PWFA protections apply. These conditions are not limited to pregnancy or childbirth, with NPRM identifying birth control, menstruation, lactation, fertility treatments, abortion and miscarriage among the broad list of “related medical conditions.”

Next Steps

The public comment period for the NPRM is open for 60 days, with comments due by October 10, 2023. Although the PWFA became effective on July 27, 2023, the law requires the EEOC to issue implementing regulations by December 29, 2023. For more information, the EEOC has published additional educational resources for employers on the PWFA on their website. These include a “What You Should Know” FAQ page that the EEOC continues to update, a summary of key provisions of the PWFA, a recorded webinar, among other resources. Business Group on Health will continue to keep members informed of implementation and regulatory developments.

Resources

• Federal Register: Notice of Proposed Rulemaking – Regulations to Implement the Pregnant Workers Fairness Act
• EEOC: Press Release
• EEOC: What You Should Know About the Pregnant Workers Fairness Act
• EEOC: Summary of Key Provisions of the EEOC’s Proposed Rule to Implement the Pregnant Workers Fairness Act (PWFA)
• EEOC: Webinar – EEOC’s Pregnant Workers Fairness Act: What Employers Need to Know
• Business Group on Health: Regulatory & Compliance Update, January 2023

If you have questions, comments, or concerns about these or other regulatory and compliance issues, please contact us.

We provide this material for informational purposes only; it is not a substitute for legal advice.

More Topics

Policy & Advocacy Compliance Diversity, Equity, Inclusion & Belonging (DEIB)