The EEOC published proposed regulations to implement the Pregnant Workers Fairness Act on 08/11/2023. The proposed regulations are found at https://www.govinfo.gov/content/pkg/FR-2023-08-11/pdf/2023-17041.pdf. The comment period for the proposed regulations ends 10/10/2023.  The PWFA requires that the EEOC issue final regulations by December 29, 2023. Final regulations will be codified at 29 CFR part 1636. Be aware that the PWFA is enforceable now, but specifics for enforcement are currently foggy at best.

What do the proposed regulations tell us?

The EEOC continues to envision how the PWFA, as a new stand-alone federal law, will operate. Some of the Commission’s current beliefs, as established in the proposed regulations, in my opinion, are ludicrous. Which is why public comments regarding the proposed regulations are very important. 

For example, the Commission admits that it is “not aware of any data concerning the cost of accommodations that relate specifically to pregnancy, childbirth, or related medical conditions.” Lacking specific data, the Commission uses cost estimates from disability accommodations, to which they are familiar under the ADA regulations.

Using cost estimates under the ADA, the Commission concludes that the impact on small entities (less than 150 employees — see Table 13 in the proposed regulations) in States and localities that have laws substantially like the PWFA “will be limited to a one-time administrative cost of approximately $56.76.” For small businesses with 500 employees, that are not already subject to laws substantially like the PWFA, “the estimated cost of compliance is $170.27 during the first year.” 

Politically, these cost estimates may ease the concerns of business, but they are not based upon real world conditions. If these cost estimates are to be believed, most employers have little reason to get energized about the PWFA.

A stool to sit on?

A major benefit of the proposed regulations is that the Commission provides many accommodation examples. Consider Example 1636.3 #33/Predictable Assessments:

“Amara, a quality inspector for a manufacturing company, experiences painful swelling in her legs, ankles, and feet during the final three months of her pregnancy. Her job requires standing for long periods of time. Amara asks the person who assigns her daily work for a stool so that she can sit while she performs her job. Amara’s swelling in her legs and ankles is a physical condition related to pregnancy. Amara’s request is for a modification that will virtually always be reasonable accommodation that does not impose an undue hardship. The employer argues that is has never provided a stool to any other worker who complained of difficulty standing but points to nothing that suggests that this modification is not reasonable or that it would impose an undue hardship in this case on the operation of the employer’s business. The request must be granted.”

As an OHS pro, what can you envision within the above EEOC example? First, is it wise to provide the pregnant worker with a chair or stool to sit on all day long while she performs her job? Sitting all day long to perform a job may also be harmful to the pregnant worker, too. The job required standing for a reason, perhaps because of height requirements to see the quality of the work closely. A best practice would be to discuss the work with the pregnant worker and agree on a good, ergonomically designed sit/stand stool. Be aware, it is impossible to find a good, ergonomically designed sit/stand stool for $56.76. Lastly, why shouldn’t a non-pregnant worker who complains of difficulty standing be provided the opportunity to use a sit/stand stool while performing a job? This is one of many examples where compliance with the PWFA has the potential to transform OSH programs.

Well-ventilated area?

Let’s consider another EEOC accommodation example. Example 1636.3 #27/Temporary Workspace/Possible Temporary Suspension of an Essential Function

“Brooke, a pregnant research assistant in her first trimester of pregnancy, asks the lead researcher on the project for a temporary workspace that would allow her to work in a well-ventilated area because her work involves hazardous chemicals that her health care provider has told her to avoid. She also points out that there are several research projects she can work on that do not involve exposure to hazardous chemicals. 1) Known limitation: Brooke’s need to avoid the chemicals is a physical or mental condition related to maintaining the health of her pregnancy; Brooke needs a change or adjustment at work; Brooke has communicated this information to the employer. 2) Qualified: If working with hazardous chemicals is an essential function of the job, Brooke may be able to perform that function with the accommodation of a well-ventilated area. If providing a well-ventilated area work area would be an undue hardship, Brooke could still be qualified with the temporary suspension of the essential function of working with the hazardous chemicals because Brooke’s inability to work with hazardous chemicals is temporary, and Brooke could perform the essential functions soon (within generally forty weeks). And it appears that her need to avoid exposure to hazardous chemicals could also be accommodated by allowing her to focus on other research projects. 3) The employer must provide accommodation in a well-ventilated space or another one, absent undue hardship. If the employer cannot accommodate Brooke in a way that allows Brooke to continue to perform the essential functions of the position, the employer must consider alternative reasonable accommodations, including temporarily suspending one or more essential function(s), absent undue hardship.”

When the PWFA regulations uses the phrase, “a physical or mental condition related to maintaining the health of her pregnancy” they are not discussing the health or safety of the pregnant worker – the regs are discussing the current or future health of the unborn child (i.e., OSHA HazCom term). 

If this PWFA accommodation request occurs, there already exists a cascade of employer failures that allows for the zero-infinity dilemma i.e., if the very remote chance that the unborn child is born with “damage” (another OSHA HazCom term) then employer liability and reputational costs may be enormous, potentially exceeding $100 million dollars. This is my greatest concern when the PWFA Pandora Box is opened. The issue is complex but if you search online for you will find a PowerPoint presentation I gave at the 2021 Michigan Safety Conference. The slides are generally self-explanatory.

Best practice

The PWFA is a new workplace health and safety standard, but few people have yet to interpret the law this way. At a minimum, each of the approximately 40 accommodation examples found in the PWFA proposed regulations should be 1) reviewed from the OHS viewpoint; 2) viewpoint shared with HR and legal; 3) develop PWFA program based on shared views; and 4) communicate program to key management and supervisory staff.