What to Expect

August 15th, 2023

Pregnant employee affected by proposed regulations for Pregnant Workers Fairness Act

Late last year, President Biden signed into law the Pregnant Workers Fairness Act (PWFA). The bipartisan legislation applies to employers with 15 or more employees. It requires covered employers to provide reasonable accommodations to a qualified employee’s (or applicant’s) known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business.

Pursuant to the Act, Congress tasked the Equal Employment Opportunity Commission (EEOC) with developing proposed regulations that interpret and implement the PWFA. The EEOC published its proposed regulations on August 11, 2023, starting a sixty-day public comment period. After that time, the EEOC will finalize and issue the controlling regulations.

In introductory comments to the proposed regulations, the EEOC stresses that the PWFA is intended by Congress to extend coverage to individuals not otherwise protected by existing legislation such as Title VII (prohibiting discrimination based on sex), the Family Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA). Accordingly, a “known limitation” need not rise to a certain level of severity to garner an accommodation.

The EEOC provides examples of accommodations that it considers reasonable (below), and like the introductory comments, they reflect an intent to construe the PWFA broadly and to expand protections well beyond those traditionally encountered under the FMLA or ADA. Assuming the EEOC ultimately implements the proposed regulations in their current form, employers will be challenged to display flexibility both in the types of accommodations provided and in the policies and processes by which they are administered.

Employers concerned about how these regulations might affect their company can contact Wright Beamer at 248.477.6300 for help.

EEOC examples of reasonable accommodations:

· A pregnant employee tells her supervisor, “I'm having trouble getting to work at my scheduled starting time because of morning sickness.”

Morning sickness is a physical condition related to pregnancy that impedes a person's ability to eat and drink and requires access to a bathroom. The employee has identified a change needed at work (change in work schedule). This is a request for a reasonable accommodation under the PWFA.

· An employee verbally informs a manager of her need for more frequent bathroom breaks, explains that the breaks are needed because the employee is pregnant, but does not complete the employer's online form for requesting accommodation.

The need to urinate more frequently is a physical condition related to pregnancy, and the employee has identified a change needed at work (additional bathroom breaks). An employee need not use specific words or any specific form or template to make a request for accommodation. This is a request for a reasonable accommodation under the PWFA.

· An employee tells a supervisor that she needs time off to recover from childbirth.

The need or a problem is related to maintaining the employee's health after childbirth, and the employee has identified a change needed at work (time off). This is a request for a reasonable accommodation under the PWFA.

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