Pregnancy Bias Law Now Enforceable Despite Lack of EEOC Guidance

A new law that provides unprecedented federal job protections for pregnant workers has spurred employers to focus on achieving compliance even as some regulations relevant to the statute’s enforcement have yet to be issued.

The Pregnant Workers Fairness Act will go into effect Tuesday, about six months after it was signed into law by President Joe Biden. The legislation mirrors the Americans with Disabilities Act by requiring employers to provide reasonable accommodations to pregnant employees, as long as those accommodations do not “impose undue hardship on the operation of the business.”

“It’s a very exciting new day in maternal and infant health and family economic security,” said Elizabeth Gedmark, vice president at advocacy group A Better Balance.

But even with the law now fully enforceable, employers still must wait for proposed regulations from the Equal Employment Opportunity Commission that could fill in gaps on its implementation in the workplace.

Legal Enforcement

The law applies to all establishments with at least 15 employees and protects those who have limitations related to “pregnancy, childbirth, or related medical conditions.”

The PWFA comes after over a decade of calls for greater protections for pregnant workers. The Pregnancy Discrimination Act, passed in 1978, prohibits employers from discriminating against current or prospective employees on the basis of pregnancy but doesn’t explicitly guarantee accommodations.

Gedmark said the need for a non-pregnant comparator to establish bias in a PDA case has caused two-thirds of suits to fail.

The new legislation differs by explicitly requiring employers to provide reasonable accommodations and doesn’t require the use of a comparator to make a claim, Gedmark said. A reasonable accommodation could include an employee refraining from carrying heavy objects or receiving time off to attend appointments to treat postpartum depression, she said.

Shira Blank, a member at Epstein Becker & Green in New York, said the new law functions as an extension of the ADA, and employers will likely apply the same protections they use under that statute.

However, there are some important differences in the two laws. Unlike the ADA, the PWFA says employers can’t require pregnant employees to take “paid or unpaid leave if another reasonable accommodation can be provided.”

Bryan Johnson, partner at Michelman & Robinson LLP in Chicago, said requesting to work from home could be interpreted as a reasonable accommodation under the new statute.

“While this may have been a major issue five years ago, we live in a world where employers are much more qualified and ready to deal with requests for remote work today than they were at the beginning of 2020,” Johnson said. “But that doesn’t negate the fact that it still could be a challenge, especially for business where remote work isn’t the obvious choice.”

Blank said proving remote work caused an “undue strain” on a business would be difficult in the post-COVID-19 world.

“If someone was able to complete the job before, the employer is now going to have to contend with any answer that they cannot now complete that job remotely,” she said.

Regulatory Delay

The EEOC has so far put frequently asked questions on the new law, but not the promised regulations.

Andrew Maunz, a Jackson Lewis PC attorney and former EEOC legal counsel, said the commission could address some of the gaps in the PWFA and “nuances that aren’t directly in the law,” including the work-from-home issue.

Earlier this month, Sen. Bill Cassidy (R-La.) sent a letter to Burrows asking why the agency had not yet engaged in any rulemaking on the legislation.

Cassidy’s office hasn’t yet received a response to the requests, according to a GOP spokesperson for the Senate Health, Education, Labor and Pensions committee, where Cassidy is ranking member.

Victor Chen, a spokesperson for the EEOC, told Bloomberg Law the commission has until the anniversary of the statute’s enactment in December to issue regulations and will start accepting PWFA complaints Tuesday.

“Because we are a bipartisan Commission, proposed regulations must be approved by a majority vote of Commissioners as well as cleared through an interagency review process coordinated by the Office of Information and Regulatory Affairs (OIRA) before the public notice and comment period,” he said in an email.

The five-member EEOC is down one Democratic commissioner, leaving the panel at a two-two partisan deadlock that makes agency business harder to complete.

Johnson said the EEOC’s delay in issuing guidance is “atypical” for the agency but not necessarily unheard of. He said he expects to see clearer guidelines on what constitutes a “known limitation” that would justify an accommodation request as well as a comprehensive list of known “reasonable accommodations.”

“If you have a more thorough and complete list of potential reasonable accommodations, it just makes the process of implementing those easier on employers,” Johnson said. “It gives them more options to understand what’s acceptable and what’s not.”