Proposed Rule to Implement Pregnant Workers Fairness Act Released

On Aug. 7, 2023, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule to implement the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023, and requires covered employers to provide reasonable accommodations (absent undue hardship) to a qualified individual’s known limitations related to pregnancy, childbirth or related medical conditions. The PWFA builds upon existing protections against pregnancy discrimination under Title VII of the Civil Rights Act and access to reasonable accommodations under the Americans with Disabilities Act (ADA).

PWFA Overview

PWFA Effective Date
The PWFA went into effect on June 27, 2023. The EEOC has begun accepting PWFA charges for acts that occur on or after that date.

Covered Employers
Covered employers include private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies and labor organizations.

Protected Individuals
The PWFA protects employees and applicants who work for a covered employer and have known limitations related to pregnancy, childbirth or related medical conditions.

Key Highlights

The rule explains how the EEOC proposes to interpret the PWFA and certain terms in the law, such as the following:

• The PWFA allows an employee or applicant to be “qualified” even if they cannot perform one or more essential functions of the job, if the inability to perform the essential function(s) is “temporary,” the worker could perform the essential function(s) “in the near future,” and the inability to perform the essential function(s) can be reasonably accommodated.
  • The proposed rule defines the term “temporary” as lasting for a limited time, not permanent and may extend beyond “in the near future.”
  • The proposed rule defines “in the near future” as generally 40 weeks, though the actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires.
• The proposed rule uses the same definition of “essential function” as the ADA. In general terms, it means the fundamental duties of the job.

The proposed rule also provides numerous examples of possible reasonable accommodations and seeks input on whether there should be more examples, and for what additional situations. In addition, the EEOC solicits information and comment on particular issues, including existing data quantifying the proportion of pregnant workers who need workplace accommodations and existing data on the average cost of pregnancy-related accommodations.

EEOC Resources

An EEOC summary of key provisions of the proposed rule is available, in addition to previously released educational resources contained in the “What You Should Know” guidance series.

EEOC FAQs are also available, called “What You Should Know About the Pregnant Workers Fairness Act.”