On August 7, 2023, the United States Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking to implement the Pregnant Workers Fairness Act.
KingSpry’s Employment Law Chair, Avery E. Smith details the significance of the recent efforts and what employers need to know to ensure compliance.
Recap: What is the Pregnant Workers Fairness Act (PWFA)?
Effective June 27, 2023, the PWFA requires all employers to provide reasonable accommodations to workers and applicants limited by pregnancy, childbirth, or related medical conditions.
The PWFA defines “reasonable accommodations” as changes to the work environment or the routine way tasks are completed in the workplace. Examples include the ability to sit, receive closer parking, receive additional break times, be excused from strenuous activities that are not safe during pregnancy, as well as access to appropriate-fitting uniforms and safety apparel.
Employers MUST Make Reasonable Accommodations
Employers governed by the PWFA must provide reasonable accommodations to employees facing limitations due to pregnancy, childbirth or medical conditions—this is not optional.
As detailed in our last blog regarding the PWFA, employers must be considerate in their approval and implementation of reasonable accommodations.
EEOC Takes Strides Forward
Though the effective date of the PWFA has passed, efforts to ensure appropriate implementation persist.
EEOC Chair, Charlotte A. Burrows, says in the Commission’s August 7th Press Release, “the PWFA is a step forward for workers, families and the economy. This important new civil rights law promotes the economic security and health of pregnant and postpartum workers by providing them with access to support on the job to keep working, which helps employers retain critical talent.”
The proposed rule intends to increase the EEOC’s leadership role in fulfilling the promise of the PWFA’s protections. Further, the proposed rule provides concrete examples aimed to help workers understand their rights and help employers comply with the new law.
What Does the Proposed Rule Say?
The EEOC’s proposed rule addresses the following elements of the PWFA:
Coverage: The PWFA covers employers, employees, applicants, and former employees who are currently covered by (1) Title VII of the Civil Rights Act of 1964; (2) the Congressional Accountability Act of 1995; (3) the Government Employee Rights Act of 1991 (GERA); or (4) section 717 of Title VII, which covers federal employees.
Remedies and Enforcement: The procedures for filing a charge or claim under the PWFA are the same as under the above-mentioned laws.
Definitions: The following terms will be defined for clarity, “known limitation”, “qualified”, “essential function”, “reasonable accommodation”, “undue hardship”, “interactive process”, “supporting documentation”.
Requesting an Accommodation: Under the proposed rule, a request for an accommodation has two parts: (1) the applicant must identify the limitation (the physical or mental condition) that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (2) the applicant must indicate that they need an adjustment or change at work. This does not need to be done in writing—a simple conversation is a sufficient request.
Prohibited Acts: Pursuant to the PWFA, an employer cannot deny a qualified employee or applicant with a known limitation a reasonable accommodation, absent of undue hardship. The proposed rule sets out additional considerations for covered entities and employees in complying with this provision. Further, the PWFA prohibits retaliation and coercion against/of any employee, applicant, or former employee.
What Does the Future Hold?
The proposed rule wasposted by the Federal Register for public inspection on August 7, 2023, and will be published for public comment on August 11, 2023. This process allows members of the public to comment on the proposed rule for sixty (60) days.
All employers should review and update their accommodation policies to ensure they comply with the standards set forth in the PWFA, as its provisions have been effective since June 27, 2023.
