Vanessa Brown Calder
Late last year, Congress passed the Pregnant Workers Fairness Act (PWFA) as part of the sprawling 2023 Consolidated Appropriations Act. The PWFA requires that employers provide pregnant workers with “accommodations” or “changes to the work environment or the way things are done at work” but leaves the specifics of what that might entail open‐ended.
This month, the Equal Employment Opportunity Commission (EEOC) proposed a rule that fills in many of the blanks produced by the initial legislation. However, the rule also broadens the scope of PWFA by expanding the eligible population, accommodation duration, and the types of accommodation required for pregnant workers beyond that described in the Act.
The rule states that workers with a modest, minor impediment or issue or an “uncomplicated pregnancy” are eligible for accommodation under the Act and indicates that a limitation does not need to rise to a certain severity threshold to qualify. Under the rule, pregnancy need not have caused the worker’s health issue; rather, the issue could simply be “related to” or “affected by” pregnancy. Moreover, the proposed rule restarts the 40‐week accommodation clock following childbirth, elongating the accommodation period by two times.
One of the significant questions left open by the original legislation was what types of changes and adjustments at work would qualify as reasonable accommodations. The proposed rule clarifies this and provides examples of possible accommodations for pregnant workers, including everything from part‐time or modified work schedules to allowing telework, frequent breaks, light duty work, or suspending essential job functions. The EEOC points out that their list of examples is not exhaustive, and workers may also seek other accommodations outside of those listed.
Moreover, the EEOC determines that certain accommodations “in virtually all cases, …do not impose an undue hardship” on the employer. Thus, the accommodations are nearly always ones the PWFA compels the employer to provide. This “default reasonable” list of accommodations includes allowing an employee whose work requires standing to sit and vice versa.
Although certain employers will easily absorb certain EEOC accommodations, the vast diversity of roles and industries in the U.S. economy ensures that various accommodations will be problematic. For instance, sitting, rather than standing, will be difficult to accommodate in roles or industries where walking and standing are essential to job duties, including many healthcare, food service, manufacturing, construction, and retail jobs. Moreover, suspending “essential” job functions will be challenging for nearly all employers, given that the employer considers those functions fundamental by definition.
Why does any of this matter? By expanding the eligible population, the accommodation period, and the types of accommodations required for pregnant workers beyond what legislators detailed in the Act, the proposed rule makes the regulation substantially more costly. Unfortunately, this could further discourage employers from hiring employees who are pregnant or could become pregnant (including women of childbearing age) when employers cannot easily absorb the cost of the new regulation.
Most employers—understandably—do not budget for workers who cannot perform the essential function(s) of their job for up to 1.5 years across the regulation’s pre‐ and post‐partum accommodation periods. Employers who understand that they could be required to provide accommodations for lengthy periods may decide that employing pregnant workers (or workers who could become pregnant) poses a significant financial risk.
The EEOC maintains that the new regulation will protect pregnant workers. Unfortunately, by broadening the scope and raising the cost of the regulation, the EEOC’s proposed rule could create new disadvantages for women and pregnant workers that are difficult to overcome.