Written by Caroline Burnett, William (Bill) F. Dugan, Benjamin Ho and Autumn Sharp from Baker McKenzie on April 4, 2024
You’re not alone in wondering where the Equal Employment Opportunity Commission’s (“EEOC”) final regulations to implement the Pregnant Workers Fairness Act (“PWFA”) are. In fact, they are well past their due date.
How it started
The PWFA became effective on June 27, 2023. In August 2023, the EEOC published proposed regulations to implement the PWFA. (We outlined the proposed regulations in our blog here, and about the PWFA here). The public comment period for the proposed regulations closed October 10, 2023, and the proposed regulations were delivered to the Office of Information and Regulatory Affairs (“OIRA”) on December 27, 2023 for review.
How it is going
However, to date, no final regulations have been issued, despite the PWFA’s requirement that the EEOC issue regulations by December 29, 2023. The regulations, once finalized, will provide clarity for employers implementing policies and practices to comply with the PWFA. For instance, the proposed regulations outline a nonexhaustive list of what the EEOC considers potential accommodations under the PWFA, including job restructuring and part-time or modified work schedules.
However, even without final regulations in place, employers are required to meet the PWFA’s mandates. The proposed regulations can still be used to offer insight into how the EEOC believes the PWFA should be interpreted.
Legal challenges to the legislation
The PWFA will not be enforced against the state of Texas. In February, a federal court in Texas ruled that Congress violated the Constitution when it passed the Consolidated Appropriations Act of 2023 (which included the PWFA) because it inappropriately relied on a COVID-era rule to allow physically non-present members of the House to vote by proxy and count towards the quorum. The court permanently enjoined the EEOC, US Department of Justice and other federal agencies from enforcing the PWFA against the state of Texas, its divisions and agencies. Importantly, however, the PWFA can still be enforced against private employers in Texas, and can be enforced against employers in the rest of the US.
Possible signs of progress
Since February there have been several EO 12866 meetings (listening sessions for the OIRA where members of the public share their views about a regulatory action the OIRA is reviewing). OIRA holds EO 12866 meetings when it is in the stage of coordinating government-wide review of the final draft of a proposed regulation to ensure it meets EO 12866 principles. This could mean the proposed regulations are close to being finalized.
What should employers do now?
- Employers who have not already done so should craft and implement policies to meet the PWFA’s requirements, considering the law has been in effect since June 27, 2023 and the EEOC started accepting PWFA-based charges on that date. We aren’t certain whether the proposed regulations will change before they are finalized and published, but we recommend reading our article to get up to speed: 5 Surprises in New Federal Pregnancy Law’s Proposed Regulations.
- Train Human Resources and management personnel involved in evaluating accommodation requests to ensure they understand the requirements of the PWFA.
- Keep close watch on the EEOC’s enforcement activity surrounding pregnancy-related discrimination. Though we have not yet seen PWFA-based lawsuits filed by the EEOC, recent EEOC cases have highlighted the agency’s current focus on pregnancy-related discrimination (see, e.g., this Georgia case and this Louisiana one), with an EEOC representative recently stating the EEOC will “use all tools at its disposal to root out pregnancy discrimination, including the Pregnant Worker Fairness Act (PWFA)[.]”
