As our readers may be aware, President Biden ended 2022 by signing the Pregnant Workers Fairness Act (PWFA) into law. The PWFA requires employers with at least 15 employees to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.
The law is expected to fill in gaps and build upon existing protections against pregnancy discrimination under Title VII of the Civil Rights Act and access to reasonable accommodations under the Americans with Disabilities Act (ADA).
The Equal Employment Opportunity Commission (EEOC) enforces the PWFA, and it began accepting Charges of Discrimination under the PWFA on June 27, 2023 — the day the law became effective. On August 11, 2023, the EEOC published in the Federal Register its proposed regulations for the PWFA, which include the agency’s interpretations of the new law and provide many detailed examples intended to assist employers in understanding the new law and complying their obligations under the law. The public has 60 days to provide comments on these proposed regulations.
While the regulations are only proposed, the PWFA has been fully in effect since the beginning of 2023, and employers must comply. The proposed regulations serve as a useful guide to the EEOC’s enforcement position at this time.
Key Points in the Proposed Regulations
Expanded Coverage for Pre- and Postpartum Conditions
Reasonable accommodation is required for “known limitations,” which do not have to rise to the level of “disability” under the ADA. Under the proposed regulations, the term “limitations” has no required level of severity. The physical or mental condition can be a “modest, minor, and/or episodic impediment or problem.” It includes a need or problem related to maintaining the pregnant employee’s health or the health of their pregnancy. It further includes circumstances in which the employee is merely seeking health care related to her pregnancy. The EEOC anticipates that the determination of whether there is a “known limitation” will be straightforward and accomplished through a conversation between the employer and employee as part of the interactive process and without the need for documentation or verification — unlike the accommodation process under the ADA.
“Pregnancy” is also defined broadly to include past pregnancies and potential or intended pregnancy.
The proposed rule also gives examples of “related medical conditions,” such as: termination of pregnancy; infertility and fertility treatment; anxiety, depression, psychosis, or postpartum depression; menstrual cycles; use of birth control; and lactation and conditions related to lactation.
Expanded Protection for “Qualified” Employees Who Cannot Perform an Essential Job Function
Like the ADA, the PWFA protects “qualified” employees or applicants who, with or without reasonable accommodation, can perform the essential job functions of their job.
In addition, the PWFA expands “qualified” employees to also include those who cannot perform one or more essential job function if: (1) the inability is for a “temporary period,” (2) the essential job function can be resumed “in the near future,” and (3) the inability to perform the job function can be reasonably accommodated. The proposed regulations define “in the near future” as 40 weeks, but they recognize that it does not mean that the essential function must always be suspended for 40 weeks and depends on what the employee needs. The EEOC’s interpretation indicates that the 40-week period would restart each time an employee requests an accommodation related to the temporary suspension of a job function — for example, if a pregnant employee temporarily cannot perform an essential function prior to childbirth and then, after returning from maternity leave, she requests an accommodation because she temporarily cannot perform the function again. This would mean the employer may be without someone in that position performing the essential job function for longer than 40 weeks in total. The proposed regulations also contemplate that the essential function can be temporarily assigned to someone else.
The EEOC is specifically seeking comment on whether the 40-week period should be extended to 52 weeks.
Presumptive Reasonable Accommodations
The proposed regulations provide examples of possible reasonable accommodations under the PWFA, including, among other things: frequent breaks, sitting/standing, schedule changes and part-time work, telework, job restructuring, and temporarily suspending one or more essential job functions. The EEOC also seeks public comment as to whether more examples would be helpful.
This difference in the proposed regulations to the accommodation process under the ADA is significant, as the accommodation of temporarily suspending an essential job function is not generally considered “reasonable” under the ADA. One of the factors the EEOC proposes to be considered in this assessment of reasonableness is whether there are other employees, temporary workers, or even third parties who can perform or be temporarily hired to perform the essential function(s) in question, or whether the essential function can simply be postponed or remain unperformed for any length of time.
The proposed regulations set forth the following four specific accommodations as per se reasonable and presumptively not an undue hardship: (1) carrying water and drinking in the employee’s work area; (2) taking additional restroom breaks; (3) alternating siting/standing; and (4) taking breaks to eat and drink.
The proposed regulations prohibit employers from requiring a qualified employee to take a leave of absence, paid or unpaid, if another reasonable accommodation can be provided that would allow the employee keep working.
An “unnecessary delay” in responding to a request for accommodation may result in a PWFA violation under the proposed regulations.
Engaging in the Interactive Process
As discussed above, the proposed regulations prohibit an employer from having a blanket request or requirement that an employee requesting an accommodation must be examined by a healthcare provider selected by the employer. While requiring supporting documentation is reasonable under the circumstances (though such circumstances are undefined), the EEOC’s proposed regulations limit the employer to requiring only reasonable documentation, such as is sufficient to describe or confirm the physical or mental condition; that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical condition; and that a change or adjustment at work is needed.
Going Forward
Employers are able to provide their comments on the proposed regulations electronically at http://www.regulations.gov. Comments on the proposal are due within 60 days of August 11, 2023.
In the meantime, companies should also consider implementing a PWFA policy or enhancing their current accommodation policies to include specific reference to pregnancy-related accommodations. Employers may also decide to revamp their interactive process and documentation requirements as it relates to pregnant employees and consider preparing forms and letters specific to PWFA accommodations. However, employers should be careful to ensure requested documentation is consistent with and allowed by the proposed regulations.
