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Proposed EEOC Regulations to Provide Specifics for New Pregnancy Law

August 9, 2023

On August 7, the U.S. Equal Employment Opportunity Commission unveiled proposed regulations for implementing the Pregnant Workers Fairness Act (PWFA), a law enacted in late 2022 that requires employers to make reasonable changes in the workplace to help employees who have pregnancy-related limitations do their jobs.

The proposed rule, which is set to be published in the Federal Register on Friday, provides details about how the agency will enforce the PWFA.  It mirrors the Americans with Disabilities Act, requiring employers to provide "reasonable accommodations" for workers affected by pregnancy, childbirth or related medical conditions.  

Starting Friday, the public will have 60 days to comment on the proposed rule, the EEOC said. The agency called for input on specific areas including defining key terms, examples of what would constitute reasonable accommodations under the law, and an assurance that employees wouldn't face consequences for using such accommodations.

The agency focused on the temporary nature of pregnancy, and suggested pregnant workers should also be allowed temporary accommodations after giving birth, which could lead to unforeseen health issues.

Four pregnancy accommodations the EEOC said would be reasonable and should be granted in almost every circumstance were allowing employees to have extra time for bathroom, food and drink breaks, drinking water on the job and sitting or standing as necessary.

The law is a significant regulatory action with a potential cost to the U.S. economy of more than $200 million, the EEOC said, because it applies to a lot of employers. Individual employers are not likely to take on high costs while accommodating their pregnant employees, the agency said.

The PWFA reads in part that employers must make reasonable accommodations "related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship."

On the EEOC's initial list of conditions it thinks generally fall within the scope of the law are "current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions."

It also said the law covers accommodations for things including postpartum anxiety and depression, infertility treatments and menstrual cycles.

The EEOC naming abortion as a covered condition is not a new interpretation. The agency has long said employers can't punish employees for having or considering an abortion.

The EEOC also called for comment on a related issue that is sure to continue to be a lightning rod: a clash between religious employers and the rights of their employees.

But the agency sought to clarify that the PWFA should not infringe on anyone's constitutional rights, that it does not require employer health plans to "pay for or cover any item, procedure, or treatment," and that religious organizations may have a legitimate defense to PWFA claims.

The agency said one possible alternative for more detailed interpretation of the law would be "a rule that construes the PWFA as not requiring a religious entity to make any accommodation that would conflict with the entity's religion."

The agency already started accepting complaints under the PWFA on June 27, the law's effective date. The PWFA gave the commission one year from the law's enactment to issue the regulations.

While the EEOC has released a set of tips for workers seeking accommodations under the new law and put out an infographic for employers and a poster about the PWFA for doctors' offices, lawmakers and workplace advocates have expressed concern about the agency not moving fast enough.

The proposed regulations were received for final review by the White House's Office of Management and Budget on June 28.

If you have questions about how this development may affect your organization, please call Johnson & Bell Employment Shareholders, Christopher J. Carlos or Caroline K. Vickrey.


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