On Aug. 11, 2023, the Equal Employment Opportunity Commission published proposed regulations implementing the Pregnant Workers Fairness Act (PWFA). President Biden signed the PWFA into law on Dec. 29, 2022, to “fill the gaps” in current federal legal protections for pregnant workers. The law requires covered employers to provide reasonable accommodations to a qualified employee’s (or applicant’s) “known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity.”
The PWFA borrows language from familiar civil rights laws, such as Title VII and the Americans with Disabilities Act (ADA). However, the proposed regulations identify several important differences between those laws and the PWFA.
Important Definitions
The proposed regulations clarify the PWFA by defining terms used in the law, such as “known limitation” and “qualified employee.”
1. Known Limitation
According to the proposed regulations, a “known limitation” is one the employer or applicant has communicated to the covered entity. Like the ADA, the employee need not use any magic words to be protected under the PWFA as long as the employee has communicated that the employee has a limitation and needs an adjustment or change at work.
The limitation can be “modest, minor, and/or episodic” and includes needs or problems that must be addressed to maintain the employee’s health or health of the pregnancy, or simply can include when the employee is seeking healthcare related to pregnancy, childbirth or a related medical condition. The proposed regulations enumerate a variety of “related medical conditions” that could be at issue, including some less-obvious conditions that may be surprising to employers, such as miscarriage, infertility, sciatica, carpal tunnel syndrome, nausea, postpartum depression and low milk supply. The expansive list of conditions in the proposed regulations indicates that “related medical condition” will be construed broadly, at least under this proposed version of the rule.
2. Qualified Employee
The proposed regulations borrow from the ADA, defining “qualified employee” as one “who, with or without reasonable accommodation, can perform the essential functions of the employment position.”
However, the proposed regulations add a second definition that deems employees qualified even if they cannot perform one or more essential functions of their jobs, provided three conditions are met: (a) the inability to perform an essential function is for a temporary period; (b) the essential function could be performed in the “near future”; and (c) the inability to perform the essential function can be reasonably accommodated. “In the near future” is defined to mean generally 40 weeks from the start of the temporary suspension of an essential function. However, based on an example provided in the regulation, the 40-week period could “restart” after the employee gives birth.
Examples of Reasonable Accommodations
The proposed regulations illustrate several accommodations the EEOC has long recognized as reasonable under the ADA and apply them to the PWFA. These accommodations include frequent breaks (e.g., for the restroom or to eat/drink); sitting/standing modifications; schedule changes, part-time work, and paid and unpaid leave; telework (e.g., to accommodate a period of bed rest or mobility impairment); parking (e.g., a reserved parking spot); light duty; modifying the work environment (e.g., allowing elevator access, providing a fan, or moving the employee’s workspace closer to a bathroom or away from fumes); job restructuring; temporarily suspending one or more essential functions; modifying equipment, uniforms or devices; and otherwise adjusting or modifying examinations or policies. Employers may find these illustrations helpful when confronting specific requests from employees.
Undue Hardship
The PWFA uses the ADA’s definition of “undue hardship,” which means a significant difficulty or expense incurred by a covered entity. Thus, an employer may consider whether a proposed accommodation would cause a significant disruption to operations or safety risks to co-workers or clients, for example. However, the proposed regulations drill down further on when specific requests may or may not be an undue hardship under the PWFA.
1. Undue Hardship for Temporarily Suspending an Essential Function
The proposed regulations outline several factors an employer may consider when determining whether temporarily suspending an essential function of an employee’s job would constitute an undue hardship. These factors include: (a) the length of time the employee will be unable to perform the essential function; (b) whether, through a reasonable accommodation or otherwise, work exists for the employee or applicant to perform; (c) the nature of the essential function, including its frequency; (d) whether the covered entity has provided other employees or applicants in similar positions who are unable to perform the essential function with temporary suspensions of those functions and other duties; (e) if necessary, whether other employees, temporary employees, or third parties could perform or be temporarily hired to perform the essential function in question; and (f) whether the essential function can be postponed or remain unperformed for any length of time and, if so, for how long.
2. “Predictable Assessments”
The proposed regulations identify several “predictable assessments” the EEOC says will “in virtually all cases” constitute reasonable accommodations, given the temporary nature of the accommodation and the likely low cost to the employer. These modifications include:
- allowing an employee to carry and drink water in the employee’s work area;
- allowing additional restroom breaks;
- allowing an employee whose work requires standing to sit and vice versa; and
- allowing additional breaks to eat and drink.
While these may be reasonable in most circumstances, the proposed regulations do not preclude an employer from asserting an undue hardship defense after conducting an individualized assessment of the employee’s request.
Documentation
Like the ADA, the PWFA allows (but does not require) employers to seek supporting documentation from the employee related to the necessity of the accommodation. However, the proposed regulations recognize that accommodations under the PWFA may not necessarily lend themselves to medical documentation or may otherwise be unreasonable. For example, an employee may experience morning sickness prior to establishing care with a healthcare provider or may have trouble obtaining immediate appointments early in pregnancy.
Additionally, the proposed regulations offer several examples of when an employer’s request for documentation would be unreasonable. For instance, it would be unreasonable to require documentation when an obviously pregnant employee seeks a uniform adjustment or when an employee requests one of the four “predictable assessment” accommodations. Similarly, given the “nearly universal” biological fact of lactation post-pregnancy, it would be unreasonable to require documentation for accommodations related to lactation (e.g., the need to pump during a shift).
Next Steps
The proposed regulations are comprehensive, and this is just a summary of some of the proposed rules. Interested parties may comment on the proposed regulations until Oct. 10, 2023. At that point, the EEOC will review comments and likely revise the proposed regulations before issuing the final rule. In the meantime, employers may consider reviewing their accommodation policies in light of the EEOC’s current interpretation of the PWFA and consider whether any changes may be necessary.
For answers to questions or additional guidance on how the proposed regulations may affect businesses, employers can contact the authors of this article or a member of the firm’s labor and employment team.