The Equal Employment Opportunity Commission (EEOC) has proposed regulations to implement the Pregnant Workers Fairness Act (PWFA), which was signed into law by President Joe Biden in December 2022 and which became effective on June 27, 2023. The PWFA expands protections for pregnant workers by requiring employers with 15 or more employees to provide reasonable accommodations to pregnant employees, unless doing so would cause any undue hardship.

On August 11, 2023, the EEOC issued a Notice of Proposed Rulemaking (NPRM) to implement the Pregnant Workers Fairness Act and published proposed regulations to provide guidance on key aspects of the PWFA. This includes the definition of "reasonable accommodation," the process for requesting accommodation, as well as the factors that employers must consider when determining whether an accommodation would cause any undue hardship.

The proposed regulations define "reasonable accommodation" as any modification or adjustment to the work environment or to the way that an essential job function is performed that would enable a pregnant employee to perform the essential functions of their job. This could include things like providing a stool to sit on, allowing more frequent breaks, modifying the employee's schedule, providing light-duty work and modifying the employee's work environment to better suit their needs.

The proposed regulations also require employers to engage in an interactive process with the employee to determine what accommodations are necessary. This means that the employer and employee must work together to discuss the employee's needs and to identify potential accommodations. The employer cannot simply deny accommodation without first considering whether there is a way to make it work. 

Finally, the proposed regulations outline the factors that employers must consider when determining whether an accommodation would cause any undue hardship, which was defined by the EEOC as "significant difficulty or expense incurred by a covered entity." These factors include the nature and cost of the accommodation, the overall financial resources of the employer, and the impact of the accommodation on the employer's operations.

The EEOC's proposed regulations are open for public comment until October 10, 2023. After that, the Commission will review the comments and finalize the regulations.

The EEOC's process for developing regulations is as follows:

1. Identify the need for a regulation. The EEOC may identify the need for a regulation through a variety of means, such as:

• Receiving complaints from individuals or organizations alleging discrimination

• Conducting studies or surveys

• Reviewing court decisions

• Changes in the law

In this instance, when it passed the PWFA, Congress directed the EEOC to issue regulations to implement the Act and to provide examples of reasonable accommodations by the end of 2023. 

2. Develop a proposed regulation. Once the EEOC has identified the need for a regulation or been directed thereto, it will develop a proposed regulation. This process includes:

• Consulting with stakeholders, such as employers, employees, and civil rights organizations

• Conducting public outreach and education

• Considering the relevant legal authorities

3. Publish the proposed regulation for public comment. The EEOC will publish the proposed regulation in the Federal Register for public comment. This gives the public an opportunity to review the proposed regulation and provide feedback. The PWFA is currently at this stage.

4. Consider public comments. The EEOC will consider all public comments received on the proposed regulation. This may lead to changes in the proposed regulation.

5. Adopt a final regulation. Once the EEOC has considered all public comments, it will adopt a final regulation. This regulation will be published in the Federal Register and will become effective on a specified date.

The EEOC's process for developing regulations is designed to ensure that regulations are fair, effective, and consistent with the law. The public comment process is an important part of this process, as it allows the EEOC to get feedback from a variety of stakeholders and ensure that the regulations are responsive to the needs of the public.

“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,” said EEOC Chair Charlotte A. Burrows. 

Burrows further explained that the EEOC’s bipartisan proposed regulation furthers the agency’s leadership role in fulfilling the promise of the PWFA’s protections. These new protections will help to ensure that pregnant workers are able to continue working and earning a living without facing discrimination.