The U.S. Equal Employment Opportunity Commission (EEOC) issued proposed regulations for the Pregnant Workers Fairness Act (PWFA). The PWFA requires employers with 15 or more employees to provide reasonable accommodations to support employees or applicants with a known limitation 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 took effect on June 27, 2023. Below is noteworthy guidance outlined in the proposed rule, which are open to the public for comment through October 10, 2023.

The proposed rule provides the EEOC’s definitions of key terms, examples of accommodations that the EEOC believes would be reasonable to provide in most circumstances, details on how to engage in the interactive process, a list of prohibited acts and remedies for violation of the PWFA.

Definitions

Employers are required to accommodate “known limitations” related to pregnancy, childbirth or related medical conditions. This means that the employee or applicant (or their representative) must communicate the limitation to the employer, but the employee does not need to reference the PWFA or use any magic words for the limitation to be considered known. Indeed, under the PWFA and analogous state and local laws, such as the New York State Human Rights Law and the New York City Human Rights Law, employers must accommodate employee limitations that the employer should know exist. Therefore, if an employer is aware that an employee is pregnant and the employee is taking frequent breaks, the employer must accommodate that employee without asking for documentation or “proof” that the employee is pregnant.

The EEOC broadly defines “pregnancy, childbirth or related medical conditions,” and it includes “current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.” The limitation does not need to be severe; it may be minor or episodic or it may be required to maintain the employee’s health or the health of their pregnancy.

Reasonable Accommodation

The proposed rule requires accommodations to be evaluated on a case-by-case basis through the “interactive process,” which requires a discussion or two-way communication between an employer and an employee/applicant to identify a reasonable accommodation that will allow the employer to perform the essential functions of the job without creating an undue hardship. The interactive process includes:

(1) determining what are the essential functions of the job

(2) consulting with the employee or applicant regarding what kind of accommodation is necessary

(3) evaluating potential accommodations, which may include suspending performance of one or more essential functions of a job if the known limitation is temporary in nature and the employee could perform the essential function(s) in the near future (within generally 40 weeks)

(4) considering the accommodation preferred by the employee and implementing the accommodation most appropriate for both the employee and employer

Potential accommodations include providing telework, temporary suspension of an essential job function such as lifting, replacing uniforms, providing unpaid leave before birth, for prenatal appointments or for recovery from childbirth, schedule changes, creating temporary workspaces or providing additional breaks.

Under the proposed regulations, an employer is only permitted to seek reasonable supporting documentation for the accommodation if needed to determine whether to grant the accommodation. Reasonable documentation would include documentation that:

(1) describes the physical or mental condition

(2) shows it is related to, affected by or arising out of pregnancy, childbirth or related medical conditions

(3) demonstrates that a change or adjustment at work is needed for that reason

Moreover, in general, employers need to be mindful that such information should be kept confidential. Disclosing that someone is pregnant, has recently been pregnant, has a related medical condition, or is receiving or has requested an accommodation under the PWFA, likely violates the Americans with Disabilities Act (ADA) with limited exceptions for sharing with supervisors, managers, for purposes of rendering first aid and to safety personnel, and to government officials investigating compliance with the ADA.

In addition, the EEOC has identified certain common accommodations that should be considered reasonable and not an undue hardship on an employer, including:

(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

(4) allowing an employee breaks, as needed, to eat and drink

While the list of common accommodations does not alter the meaning of the terms “reasonable accommodation” or “undue hardship,” the EEOC expects that such modifications will be found to be reasonable absent extraordinary circumstances.

When considering such requests on an individualized basis, employers are not permitted to deny a request for an accommodation simply because other employees might seek the same reasonable accommodation or because the same employee might seek another reasonable accommodation in the future. Further, if an employer receives numerous requests for the same or similar accommodation at the same time, the employer cannot deny all of them simply because processing the volume of current or anticipated requests is, or would be, burdensome or because it cannot grant all of them as requested. The employer must evaluate such requests on a case-by-case basis and provide reasonable accommodations unless or until doing so imposes an undue hardship. However, the employer may point to costs or burdens of accommodations that have already been granted when claiming the hardship posed by another request for the same or similar accommodation.

Prohibited Acts

The proposed rule sets forth certain acts that would be considered a violation of the PWFA:

(1) an unreasonable and unnecessary delay in responding to a request for accommodation

(2) failure to consider a temporary suspension of one or more essential functions of a job in certain circumstances

(3) denial of an accommodation based on lack of documentation alone

(4) denying the employee’s preferred reasonable accommodation if more than one reasonable accommodation exist. For example, an employer cannot force an employee to take paid or unpaid leave if another reasonable accommodation is available

An employer may not deny an individual employment opportunities simply because the individual needs an accommodation. An employer is not permitted to require an employee or applicant to accept an accommodation that was not arrived at through the interactive process. In other words, employers cannot impose or dictate a particular accommodation. The employer is also prohibited from retaliating against an employee for requesting or using a reasonable accommodation. In addition, existing protections for pregnancy, childbirth,or related medical conditions (e.g. Title VII, the ADA, the FMLA, the Rehabilitation Act, and the PUMP Act) are unaffected by the PWFA.

Remedies and Enforcement

The procedures for filing an EEOC charge or claim under the PWFA, as well as the available remedies, including the ability to obtain damages, are the same as under Title VII of the Civil Rights Act and the Americans with Disabilities Act. As with the Americans with Disabilities Act, damages are limited if the claim involves the provision of a reasonable accommodation and the employer makes a good faith effort to meet the need for a reasonable accommodation.

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