On August 11, 2023, the Equal Employment Opportunity Commission (EEOC) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register that implements the Pregnant Workers Fairness Act (PWFA), which was signed into law by President Biden on December 29, 2022 and effective June 27, 2023. The public now has 60 days – until October 10, 2023 – to comment on the proposed regulations. The PWFA built on protections previously provided to workers under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA) and was intended to close gaps in these federal legal protections. The proposed regulations address a number of important issues with respect to providing accommodations to workers with known limitations affected by pregnancy, childbirth, or related medical conditions.
The proposed regulations adopt a broad definition of what constitutes a pregnancy “limitation,” specifying that it need not rise to the level of a disability under the ADA and may include physical or mental impairments or problems that are modest, minor, and/or episodic regarding the health of the employee or the health of the pregnancy related to pregnancy, childbirth, or a related medical condition. It does not require a specific level of severity. The definition includes current, past, and potential pregnancy, lactation, use of birth control, menstruation, miscarriages, and endometriosis.
Under the proposed regulations, the employee or applicant must communicate and make the employer aware of the pregnancy limitation. The communication may be to a supervisor, manager, someone with supervisory authority for the employee, or human resources personnel, or by following the covered entity’s policy to request an accommodation.
Employees and applicants must be permitted to request an accommodation through multiple avenues and means. The request need not be in writing or use any specific words or phrases and may be by any mode of communication. The employer may write a memorandum or letter confirming a request or may ask the employee or applicant to fill out a form or submit the request in written form, but an employer may not ignore a request once it is on notice. The employee or applicant (or a representative of them) must identify the limitation that is the physical or mental condition, that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, and the need for an adjustment or change at work. Once the need is communicated, the employer must respond to the request and engage in the interactive process.
An individual may be considered a “qualified” applicant or employee even if the individual cannot perform the essential functions of the job as long as the individual’s inability to perform the essential functions is temporary, could be performed in the “near future” (generally meaning within 40 weeks), and the individual could be reasonably accommodated during the time the individual cannot perform the essential functions. The EEOC explained that the last factor may mean different things for different positions. It may mean that:
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One or more essential functions are temporarily suspended, with or without reassignment to someone else, and the employee continues to perform the remaining functions of the job; or
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Some of the essential functions may be temporarily suspended, with or without reassignment to someone else, and the employee may be assigned other tasks to replace them; or
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One or more essential functions may be temporarily suspended, with or without reassignment to someone else, and the employee may perform the functions of a different job to which the employer temporarily transfers or assigns the employee, or the employee may participate in the employer’s light or modified duty program.
The EEOC sets forth detailed examples of reasonable accommodations that may be provided to address known limitations related to pregnancy, childbirth, or related medical conditions:
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Frequent breaks;
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Sitting/standing;
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Schedule changes, part-time work, and paid and unpaid leave;
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Telework;
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Reserved parking;
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Light duty;
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Making existing facilities accessible or modifying the work environment;
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Job restructuring;
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Temporarily suspending one or more essential functions;
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Acquiring or modifying equipment, uniforms, or devices;
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Adjusting or modifying examinations or policies.
The definition of “undue hardship” mirrors the ADA regulations and means a significant difficulty or expense when considered in light of the accommodation nature and cost, the financial resources of the facility providing the accommodation, the employer’s overall financial resources, the employer’s operations (including the composition, structure, and functions of the workforce and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to employer); and the impact of the accommodation on the facility’s operations.
If the employer cannot provide the requested accommodation, it must consider whether there are other reasonable accommodations it can provide, absent undue hardship. If the employer can only provide part of the reasonable accommodation absent undue hardship, it must provide the reasonable accommodation up to the point of creating an undue hardship. An employer may not impose a reasonable accommodation of the employer’s choosing without considering the employee’s particular situation and requested accommodation. Further, the employer may not compel an employee to accept a reasonable accommodation when the employee did not request one.
The proposed regulations build on what can be considered an undue hardship by creating a list of “predictable assessments,” which are certain accommodations that will virtually never be considered to create an undue hardship because they are commonly sought and widely known to be needed during an uncomplicated pregnancy. These predictable assessments include: (1) allowing an employee to carry water and drink, as needed, in the employee’s work area; (2) allowing an employee additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and(4) allowing an employee breaks, as needed, to eat and drink.
An employer may require documentation only if it is reasonable to do so under the circumstances. Examples of situations in which it might be unreasonable to do so are: (1) when the need for an accommodation is obvious; (2) when the individual has already provided the employer with sufficient information to substantiate a known limitation and needs a change or adjustment at work; (3) when the request is for one of the four “predictive assessment” accommodations; and (4) and when the limitation for which an accommodation is needed involves lactation.
When it is reasonable to require documentation, the covered entity is permitted to require reasonable documentation, including from a health care provider, that describes or confirms: (1) the physical or mental condition; (2) that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3) that a change or adjustment at work is needed for that reason.
An unnecessary delay in responding to a request for an accommodation or in providing one may lead to employer liability.
An employer may consider the following factors when assessing whether temporarily suspending an individual’s job function will create an undue hardship: (1) the length of time that the employee or applicant will be unable to perform the essential function(s); (2) whether, there is work for the employee or applicant to accomplish even given the temporary suspension of the duty; (3) the nature of the essential function(s), including its frequency; (4) whether the covered entity has provided other employees or applicants in similar positions who are unable to perform the essential function(s) of their position with temporary suspensions of essential functions; (5) if necessary, whether there are other employees, temporary employees, or third parties who can perform or be hired to perform the essential function(s); and (6) whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.
The EEOC also provides additional PWFA resources for employers, including:
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What You Should Know About the Pregnant Workers Fairness Act;
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A webinar;
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An informational poster for healthcare facilities;
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A document including tips for workers;
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A video series; and
Takeaways
Employers should take actions to prepare for compliance and make any necessary revisions to their policies. Then, if the regulations are finalized, employers should make sure to implement policies and procedures incorporating the new requirements. Employers should:
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Review and revise their workplace policies and procedures with respect to discrimination, harassment, retaliation, and reasonable accommodations;
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Review their recruiting and hiring processes and ensure that they do not discriminate on the basis of pregnancy-related conditions;
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Train managers and supervisors on how to identify a reasonable accommodation request based on pregnancy-related conditions and the need to escalate those requests to human resources immediately; and
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Train human resources personnel on the proper way to address reasonable accommodation requests based on pregnancy-related conditions.
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.
