EEOC Publishes Regulation On Pregnant Workers Fairness Act

On April 19, the U.S. Equal Employment Opportunity Commission (EEOC) published its regulation on the Pregnant Workers Fairness Act (PWFA). This regulation provides guidance on this new law and formally explains how the EEOC will interpret and enforce the PWFA.

Effective June 27, 2023, the federal PWFA requires an employer with at least 15 employees to provide reasonable accommodations to pregnant individuals who have a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions whether or not that condition meets the definition of disability under the ADA. It also provides that a pregnant worker is entitled to an accommodation even if she is temporarily unable to perform the essential functions of her position as long as the essential function could be performed in the near future and the inability to perform the essential function can be reasonably accommodated.

The EEOC’s regulation interprets the PWFA broadly and has been criticized by lawmakers as going beyond Congress’ intent for this federal law. Employers should be aware that under the EEOC’s regulation, a “physical or mental condition” can be a modest, minor, or episodic impediment or “problem” and can include a “need” or “problem” related to maintaining the individual’s health or the health of the pregnancy. Moreover, the definition of pregnancy may include current, past, potential, or intended pregnancy, or the termination of pregnancy (including miscarriage, stillbirth, or abortion), and can also include infertility, fertility treatment, and the use of contraception. Additionally, the regulation limits an employer’s ability to seek documentation to confirm a need for an accommodation under the PWFA and requires an employer to accept an employee’s self-confirmation when a pregnancy is obvious and she is seeking a “predictable” accommodation. 

The regulation provides examples of reasonable accommodations, guidance on the types of limitations and medical conditions for which employees or applicants may seek reasonable accommodation,  clarification on documentation requirements, an explanation of when an accommodation would be considered an undue hardship, and information on how employers may assert defenses or exemptions. 

As always, KZA attorneys are available to assist you in understanding and applying the PWFA.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.