The Equal Employment Opportunity Commission (“EEOC”) recently issued proposed regulations to implement the Pregnant Workers Fairness Act (“PWFA”). The PWFA was signed into law on December 29, 2022, and is meant to expand the protections afforded workers affected by pregnancy, childbirth, or related medical conditions.
Pursuant to the PWFA, all employers covered by Title VII must “provide reasonable accommodations for a known limitation of a qualified employee or applicant related to pregnancy, childbirth or related medical conditions, absent undue hardship.” The PWFA defines “known limitation” in part as a physical or mental condition related to, affected by or arising out of pregnancy, childbirth or related medical conditions that the employee or applicant (or employee representative) has communicated to the covered entity, whether or not such condition meets the definition of disability under the Americans with Disabilities Act.
Moreover, the PWFA recognizes that an individual is a “qualified employee or applicant” even though the individual may not be able to temporarily perform one or more “essential functions of the job,” but will be able to perform such functions in the near future, and the inability to perform the essential function can be reasonably accommodated. For example, an essential function of a construction worker’s job may be the ability to lift more than 20 pounds, but the pregnant construction worker may have a lifting restriction of 20 pounds while pregnant. The employer may be able to accommodate the construction worker by offering a device to assist the worker with lifting.
As the EEOC notes, the accommodations many workers will request are likely to be at no cost to low cost to employers, such as additional bathroom breaks, a stool for a cashier, or allowing an employee to carry water with them. In many cases, the requests will be fairly straightforward and employers should act quickly to provide the accommodation. In other instances, good faith participation in the interactive process of requests for reasonable accommodations by employers and employees will be required.