On August 11, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) formally published proposed regulations to implement the Pregnant Workers Fairness Act (PWFA).  In a matter of just under 9 months, since the law was enacted at the end of 2022, the EEOC crafted 275+ pages worth of regulations, preamble and interpretive guidance to fill in the gaps found in the 10 page statute. The proposed regulations contain some interpretations that were largely expected and some surprises. The proposed regulations are subject to a 60-day comment period and will surely change before being finalized. The PWFA requires the EEOC to issue final regulations by December 29, 2023. For a deep dive into the proposed regulations, check out our article here.  Below is a quick overview of some of the important questions addressed by the EEOC in the proposed regulations.

  1. Who is entitled to an accommodation? Qualified employees limited due to pregnancy, childbirth and related medical condition, as long as the accommodation does not create an undue hardship. Unlike the ADA, an employee who cannot perform their essential duties may still be qualified.
  2. What is a “known limitation”? A mental or physical impediment or problem related to pregnancy, childbirth or related medical conditions, including common or minor conditions that has been communicated to the employer. 
  3. What types of conditions and circumstances are included under the umbrella of “pregnancy, childbirth and related medical conditions”? Conditions that are commonly associated with pregnancy and childbirth, as well as many others that may not be.
  4. The PWFA says that an employee can be qualified, and therefore eligible for accommodations when the employee has a temporary inability to perform the essential job functions. How long does an employer have to excuse an employee from performing essential functions?  The proposed regulations require employers excuse essential job functions for generally up to 40 weeks per accommodation request, subject to undue hardship.
  5. If the employee can perform the essential functions of the job but will need an accommodation to do so, does the limitation have to be temporary? No.
  6. When does accommodating an employee who cannot perform the essential functions of the job create an undue hardship?  An employer may be able to demonstrate an undue hardship when removing an essential function would impose significant difficulty or expense. The proposed regulations identify factors for employers to consider.
  7. Do the regulations provide a list of common accommodations for pregnant employees that employers should usually grant quickly and without supporting documentation?  Yes.
  8. If an employee requests leave as an accommodation, how much leave must an employer provide? There is no bright line rule.
  9. If an employee has paid leave available under a state or local paid sick leave law or under an employer provided paid leave policy or benefit program, can the employee be required to use that paid leave to run concurrently with time off as a reasonable accommodation under the PWFA? No, employees must be given the opportunity to choose in the same manner employees on other types of leave are permitted to choose.
  10. Can an employer choose to provide an alternative, effective accommodation? In most cases, yes.
  11. Can employers ask for medical documentation to support an accommodation request? Sometimes. 
  12. How long should it take to process a PWFA reasonable accommodation request? It depends. 
  13. Are employers required to provide lactation accommodations under the PWFA? Yes, absent undue hardship.
  14. How should employers manage concerns that the workplace or the position presents safety risks for the pregnant employee or the pregnancy?  Safety can still be part of the undue hardship analysis.
  15. Other than the four common accommodations for pregnant employees discussed above, does the EEOC give employers guidance on what kind of accommodations might be considered reasonable, absent undue hardship? The EEOC has provided a non-exhaustive list of possible accommodations.
  16. If the employee is granted an accommodation that reduces the employee’s work time, does the employer have to do anything else to make the accommodation effective?  Perhaps.

Six Steps To Consider Taking Now

There are six steps employers may want to consider taking now. 

  1. Review the proposed regulations, and the examples included in the proposed regulations so you can better understand how the EEOC is currently interpreting this new law.
  2. When handling accommodation requests, keep in mind that if another federal, state or local law provides greater protection or different requirements, those laws will also apply. Currently there are 30 states and 5 local jurisdictions with their own version of the PWFA or a pregnancy accommodation law.
  3. Covered employers are required to post notices describing the PWFA. An updated EEO poster is available on the EEOC website.  
  4. Consider whether changes need to be made to existing forms and practices to comply with the PWFA and in light of the proposed regulations while recognizing that these regulations are subject to change.
  5. Consider training your HR professionals, managers and first-line supervisors on how to identify and respond to requests for PWFA accommodations.
  6. Consider whether you want to submit comments on the EEOC’s proposed regulations during the 60-day comment period.

The most important thing to do at this stage is to keep in mind that these proposed regulations are just that—proposed. They represent the EEOC’s current interpretation of the PWFA before the agency has had an opportunity to consider comments and questions from the public. The proposed regulations will undoubtedly be revised after the comment period expires and a final set of regulations will be issued.

Want to learn more?

Please register to join us on September 14, for an in-depth discussion about these proposed regulations: EEOC’s Proposed PWFA Regulations: Oh Mama! – Jackson Lewis

If you have any questions about the PWFA, the implications of the proposed regulations for your organization or are interested in working with Jackson Lewis to provide comments to the EEOC, please contact a Jackson Lewis lawyer. As always, if you want to stay on top of changes and updates regarding the PWFA, subscribe to our Disability, Leave and Health Management Blog.

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Photo of Joseph J. Lynett Joseph J. Lynett

Joseph Lynett is a Principal in the White Plains, New York, office of Jackson Lewis P.C. and  and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. His practice focuses on assisting clients in meeting the legal and practical challenges…

Joseph Lynett is a Principal in the White Plains, New York, office of Jackson Lewis P.C. and  and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. His practice focuses on assisting clients in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, as well as disabled students and members of the public. Joe provides imaginative and creative solutions to the complex array of workplace disability and health management issues faced by both large and small companies.

Learn more about Joe Lynett on the Jackson Lewis website.

Photo of Katharine C. Weber Katharine C. Weber

Katharine C. Weber is a principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. She has successfully assisted countless clients in handling their labor and employment issues in both…

Katharine C. Weber is a principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. She has successfully assisted countless clients in handling their labor and employment issues in both Ohio and Kentucky.

Katharine has experience litigating wrongful discharge cases; managing discrimination cases; negotiating collective bargaining agreements; representing employers before the Equal Employment Opportunity Commission and other federal, Ohio and Kentucky agencies; advising management on employment relations; drafting employee handbooks; and negotiating severance agreements.

Katharine regularly advises clients on wage and hour issues. Over the past five years she has served as lead counsel on various wage and hour class and collective actions filed in both Ohio and Kentucky involving claims of misclassification, off the clock work, and other violations for which the plaintiffs claimed to be owed substantial overtime.

Additionally, Katharine is extremely knowledgeable in the area of the Americans with Disabilities Act, and the Family and Medical Leave Act, and brings sophisticated, yet easy to understand advice on handling and defending against sexual harassment claims. From helping clients analyze options and making recommendations on how to handle employee relations issues, to representing clients in complex discrimination cases, Katharine always provides creative solutions and passionate advocacy for her clients. She is also very involved in the transportation industry and has successfully litigated several cutting-edge employment law cases which have been of great benefit to transportation industry employers.

Photo of Catherine A. Cano Catherine A. Cano

Catherine A. Cano is a principal in the Omaha, Nebraska, office of Jackson Lewis P.C. Catherine represents management in all areas of labor and employment law.

Catherine helps clients navigate obligations under the Americans with Disabilities Act, Family and Medical Leave Act, and…

Catherine A. Cano is a principal in the Omaha, Nebraska, office of Jackson Lewis P.C. Catherine represents management in all areas of labor and employment law.

Catherine helps clients navigate obligations under the Americans with Disabilities Act, Family and Medical Leave Act, and state disability and leave laws. She also counsels clients on workplace drug and alcohol issues, including developing substance abuse policies. Catherine has defended more than 100 charges of discrimination filed with federal, state and local administrative agencies, and regularly appears before the U.S. Equal Employment Opportunity Commission, Iowa Civil Rights Commission and Nebraska Equal Opportunity Commission. Catherine represents in employers in federal and state court proceedings and has successfully defended multiple employment arbitrations.

Catherine’s practice also includes assisting clients with union organization campaigns, collective bargaining, grievance arbitrations, and unfair labor practice charges. Catherine also has experience defending employers against whistleblower claims filed with the Occupational Health and Safety Administration.

Photo of Jenifer M. Bologna Jenifer M. Bologna

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C. She focuses much of her practice on assisting multi-state employers with compliance solutions, developing policies and practices that are lawful in all of the jurisdictions in which…

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C. She focuses much of her practice on assisting multi-state employers with compliance solutions, developing policies and practices that are lawful in all of the jurisdictions in which they operate.

Jenifer specializes in preventative advice and counsel on a nation-wide basis, regularly advising clients on multi-state employment law issues to address an increasingly remote and hybrid workforce. In addition, she supports employers in navigating the complex and growing body of federal, state and local leave, accommodation and benefit laws that impact an employer’s response to employees who are injured or ill, have family care responsibilities or need time to bond with children.

Jenifer’s extensive counseling experience allows her to provide nuanced advice that helps employers effectively respond to the legal and business challenges posed by the varying array of workplace employment laws. Utilizing creative legal strategies and practical advice, she guides clients through these complex issues that often demand individualized solutions.

Jenifer’s goal is to minimize her clients’ litigation risk by working with them to implement preventative strategies and constructive solutions. As such, she regularly assists employers with policy and process development or improvement, including absence management and accommodation protocols and multi-state employment policies. Understanding there is no one-size-fits-all approach, Jenifer works with clients to develop an employment law compliance strategy that best fits their specific needs.

In addition to advice and counsel, Jenifer frequently speaks on disability and absence management issues and employment law compliance, including regularly conducting workplace training on these topics.

Photo of Tara K. Burke Tara K. Burke

Tara K. Burke is the knowledge management (“KM”) attorney for Jackson Lewis P.C.’s Disability, Leave & Health Management practice group, and is based in the Cincinnati, Ohio, office of Jackson Lewis P.C. She works with employers to build positive and inclusive workplaces and…

Tara K. Burke is the knowledge management (“KM”) attorney for Jackson Lewis P.C.’s Disability, Leave & Health Management practice group, and is based in the Cincinnati, Ohio, office of Jackson Lewis P.C. She works with employers to build positive and inclusive workplaces and reduce legal risk through policy development, training, and employment law counseling.

Tara provides practical and legal advice to clients on employment law issues including harassment and discrimination prevention, diversity and inclusion, hiring and interviewing, internal investigations, disability accommodation and leave management, reductions in force, individual separations and employee relations issues. Tara works with clients, including multi-state employers, to identify the trends in workplace law and stay in compliance with the rapidly changing state-by-state legal landscape. Tara helps clients of all sizes and in all industries, create, revise and implement workplace policies and procedures including employee handbooks. She also routinely conducts workplace training for leadership, human resources, managers and employees on numerous topics including strong management practices that reduce legal risk and build effective teams, preventing sexual harassment by supporting respectful and positive workplaces, achieving winning results through diversity and inclusion, conducting investigations, and employee accommodations and leaves of absence.

Tara has defended employers in employment-related litigation and administrative proceedings.

In addition to working with for-profit clients, Tara also works with non-profit clients, including small non-profits, to provide employment law expertise to non-profit organizations supporting our communities across the country.