What to Expect When You're Expecting EEOC Regulations

The U.S. Equal Employment Opportunity Commission (EEOC) released its proposed regulations on the Pregnant Workers Fairness Act (PWFA) on Aug. 7, 2023, providing guidance on how the EEOC intends to interpret the PWFA and its requirements.

The PWFA, which went into effect on June 27, 2023, expanded protections for expecting and postpartum employees by requiring that employers offer reasonable accommodations to employees who are pregnant or who have a condition related to pregnancy or childbirth.

The regulations are subject to change based on public comment and input from new EEOC Commissioner Kalpana Kotagal.

Employees Covered by the PWFA Are Defined Broadly

The PWFA not only covers a wider category of workers than employees expecting children, but also includes employees with any limitations related to pregnancy, childbirth or any related medical conditions. This includes employees who may be seeking abortions or have received abortions.

Accommodations for a Wide Variety of Pregnancy-Related Conditions

The regulations further clarify that the PWFA is intended to cover not only pregnancy but also a broad range of pregnancy-related conditions, including abortion, current, past or potential pregnancy, miscarriage, stillbirth, menstruation, lactation, birth control usage, infertility and fertility treatments, and endometriosis. Broader still, the Act also protects employees with related conditions such as nausea, postpartum depression, carpal tunnel syndrome, migraines, dehydration, gestational diabetes and mastitis – to name just a few.

While the regulations provide a long list of pregnancy-related conditions covered by the Act, it is clear that the list is not intended to be exhaustive. Employees who can articulate a pregnancy-related medical condition will likely be covered by the Act.

The EEOC's explicit indication that the Act covers abortion is particularly of note, given that several states have outlawed abortion since the U.S. Supreme Court's June 2022 holding in Dobbs v. Jackson Women's Health Organization, which overruled Roe v. Wade and Planned Parenthood v. Casey and removed the constitutional right to an abortion.

Temporary Removal of the Essential Functions Requirement

The regulations also propose removing the long-standing requirement under the Americans with Disabilities Act (ADA) that employees demonstrate that they can perform the essential functions of their positions – albeit only for a 40-week time period.

Under the ADA, disabled employees must show that they still can perform the essential functions of their jobs with or without an accommodation in order to receive protections under that law. However, under the PWFA, that requirement is skipped for a 40-week period – mirroring the typical length of a pregnancy. But a closer review of the regulations suggests that this period could end up being much longer. That is because the regulations propose restarting the 40-week period once an employee returns to work after giving birth. So when new moms return to work, companies may still need to accommodate them for an additional 40-week period, even if they cannot perform the essential functions of their positions for that period of time.

Subject to public comment, that 40-week period may also extend to 52 weeks after the employee returns to work after childbirth.

Accommodations Under the Act and Expansion of the PUMP Act

The regulations provide numerous examples of possible reasonable accommodations under the PWFA for pregnant and postpartum employees. The EEOC proposes that the following accommodations are considered per se reasonable – what they refer to as "predictable assessments":

• allowing an employee to take additional restroom breaks
• allowing an employee whose work requires standing to sit and vice versa
• allowing an employee to keep water in the work area and drink as needed
• allowing an employee to take rest breaks to eat and drink

These predictable assessments do not alter the meaning of what is a reasonable accommodation or undue hardship for an employer as adopted under the ADA, but the EEOC has indicated that it expects that in most cases these predictable assessments will be determined after an individualized assessment to be reasonable and not pose an undue hardship to the employer.

With the application of the PWFA to employees seeking an abortion, employers may be required to accommodate employees seeking an abortion who must travel to another state to receive that procedure by providing additional time off. State or local laws prohibiting assistance to those obtaining abortions may affect whether such accommodations would pose an undue hardship to any employer.

The EEOC's regulation also expand upon the PUMP for Nursing Mothers Act by requiring that employers provide support for lactating employees. The PUMP Act provided lactating employees time and a place to pump at work. The EEOC's proposed regulations specifically require that employers provide new nursing mothers with pumping areas on the job that are in a "reasonable proximity" to the employee's usual work area. This area must be a private space free from intrusion and does not include a bathroom. The proposed regulations also indicate that lactation is a medical condition that can require a reasonable accommodation of providing a time and place to express breast milk beyond one year after the child's birth as outlined in the PUMP Act.

Limiting the Documentation Supporting an Accommodation

The EEOC also proposes limiting when an employer may demand documentation from a pregnant or postpartum employee to only where reasonable. Requests for documentation that are perceived as unreasonable may be treated as coercive or retaliatory against the employee.

The EEOC proposes prohibiting a certification when:

• the limitation and need for a reasonable accommodation is obvious
• the employer has enough information to substantiate a known limitation related to pregnancy
• the request is for one of the "predictive assessment" accommodations
• the request is for a lactation accommodation

Even when an employer may require documentation in order to provide an accommodation, the proposed regulations encourage employers to grant interim accommodations before receiving documentation in some instances. The EEOC also proposes providing certain accommodations before employees have begun seeing medical providers for their pregnancy, such as providing later start times, breaks or telework for morning sickness and nausea in the first trimester.

Next Steps

Public comment regarding the proposed regulations must be received by the EEOC by Oct. 10, 2023.

For assistance in submitting comments or for questions on the EEOC's proposed PWFA guidance and how it could specifically impact your company, contact the authors or another member of Holland & Knight's Labor, Employment and Benefits Group.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.