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EEOC floats pregnancy accommodation rule, seeks employer input

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The U.S. Equal Employment Opportunity Commission will propose pregnancy accommodation regulations this week and employers will have 60 days to comment, it said Monday.

The rule will implement the Pregnant Workers Fairness Act, a law Congress passed in December 2022 to close what EEOC and other supporters said were gaps in existing rights — primarily, pregnancy-related accommodations.

The law took effect just weeks ago and Congress instructed EEOC to issue implementing regulations within a year of the law’s enactment.

The agency’s proposed rule provides coverage that mirrors Title VII and ADA rules and defines terms like “undue hardship,” “essential function” and “interactive process” in similar ways.

The commission’s proposal shares a nonexhaustive list of potential accommodations. Employers may be required to provide, for example, job restructuring, part-time work, modified schedules, more frequent breaks, uniform modifications, seating, leave, light duty, or temporary removal of an essential function.

Accommodations are available for applicants and employees, according to the proposal, and are required in a variety of circumstances: for uncomplicated pregnancies; for existing conditions exacerbated by pregnancy or childbirth; for those needing only a temporary change; and for related medical conditions.

“Related medical conditions” could include past pregnancy, potential pregnancy, lactation, use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, EEOC said.

The proposal has already drawn criticism for that list, with Sen. Bill Cassidy, R-LA, accusing EEOC of going beyond its directive from Congress.

“The Biden administration has gone rogue,” Cassidy said in a statement. “The Pregnant Workers Fairness Act is aimed at assisting pregnant mothers who remain in the workforce by choice or necessity as they bring their child to term and recover after childbirth. The decision to disregard the legislative process to inject a political abortion agenda is illegal and deeply concerning.”

The commission said in an announcement that it is seeking “meaningful feedback about how the proposal would impact workplaces and ways to assist employers and workers in understanding the law.”

The proposal is slated to publish in the Federal Register on Friday. Employers can comment at Regulations.gov using Regulation Identifier Number 3046-AB30.

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