EEOC Proposes Regulations Related to Pregnant Worker Rights

On August 11, the EEOC published proposed regulations implementing the Pregnant Workers Fairness Act, which became effective on June 27, 2023.  Although not final, the EEOC is expected to adopt these regulations in, largely, the proposed form.  Thus, in this article, we summarize the key provisions of the proposed regulations:

  1. Employers will be required to accommodate pregnancy-related conditions, and in the proposed regulations, those conditions are defined broadly. There is no requirement that the condition be present with the level of permanency or severity as a regular disability.  Rather, temporary pregnancy-related conditions will be sufficient to obligate the employer to provide accommodations to pregnant workers.
  2. Employees do not need to use any “magic” or specific language to request accommodations.  This means that employers will need to be informed and vigilant for potential accommodation requests from pregnant employees, very similarly to what they are obligated to do with disabled workers.
  3. The regulations provide a non-exhaustive list of possible reasonable accommodations for pregnant employes, which include remote work.
  4. The EEOC regulations establish four accommodations that it expects employers to provide in almost all circumstances.
  5. The regulations remind employers that they cannot impose accommodations on employees who do not request them. 
  6. Employers may only obtain a medical documentation to support a request for an accommodation if it is reasonable under the circumstances, and they remind employers that requests for documentation that violate the proposed rule could be considered unlawful coercion or retaliation.
  7. Certain practices are explicitly prohibited.  Most of them are common-sense but it is worth noting that the regulations specify that requiring an employee to take leave when other accommodations are available would be considered a technical violation of the law.
  8. In addition to prohibiting retaliation, the proposed regulations discuss examples of coercive action, which would also be unlawful under the law.

We will provide more information about these proposed regulations as it becomes available. In the meantime, employers should be cognizant that pregnant employees are a high-risk litigation category in any case and should proceed carefully when contemplating any action that could be considered an adverse employment action against a pregnant person.