Employers should take note – the U.S. Equal Employment Opportunity Commission ("the EEOC") unveiled draft regulations and guidance on the new federal Pregnant Workers Fairness Act (PWFA) – and there are numerous noteworthy inclusions that employers may wish to weigh in on. The draft regulations and guidance are scheduled to be published on August 11, 2023 and employers will have 60 days to submit comments to the EEOC for consideration.

While the new PWFA does not replace the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), the Family and Medical Leave Act (FMLA), or state and local laws that may provide protections for pregnant employees, the PWFA applies to employers throughout the country and has an expanded coverage of qualifying employees with pregnancy- and childbirth-related limitations. In addition, the draft regulations and guidance appear to expand protections even further, providing broad coverage for pre- and postpartum conditions and explicitly allowing the temporary suspension of essential functions as a reasonable accommodation if the employees may be able to perform essential functions "in the near future" – which is currently defined as a 40-week period. The draft regulations also set forth an extensive framework for evaluating reasonable accommodations and undue hardship that appear to diverge from the established accommodation framework under current federal and state laws. Below is an overview of the PWFA draft regulations and guidance, as well as key takeaways for employers.

PWFA Overview and the Gap the Act Is Trying to Fill

On June 27, 2023, PWFA went into effect. The PWFA, which received bipartisan support in the House and the Senate, responds to the gaps in reasonable accommodation access for pregnant and nursing workers under existing federal laws, including the ADA, Title VII, and FMLA. For example, pregnancy has generally not been covered by the ADA because of its temporary nature. And while the FMLA provides leave for employees who are FMLA eligible, it does not contemplate any other accommodations. This is where the PWFA comes in. It requires private and public sector employers with at least 15 employees to provide reasonable accommodations to an employee's known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will impose an undue hardship on the employer. As is discussed in our earlier advisory, the PWFA also prohibits employers from denying job and employment opportunities to qualified employees and applicants, requires that employers engage in the interactive process, and prohibits employers from taking adverse action or retaliating because employees have requested accommodations or opposed unlawful practices. In addition, the PWFA requires that leave only be provided as an accommodation if there are no other options available that would allow employees to keep working. By providing broader access to reasonable accommodations, the PWFA helps pregnant and nursing workers continue to participate in the workforce without having to sacrifice their and their children's health and safety.

As noted above, the EEOC recently shared draft regulations and asked for public comment. The draft regulations and EEOC guidance are scheduled to be published on Friday, August 11, 2023. The 60-day comment period begins once the draft regulations are published. While the draft regulations have not yet been adopted and may still change, employers should consider submitting comments and can use the draft to begin to consider compliance. Comments can be submitted, identified by RIN number 3046-AB30, here: https://www.regulations.gov.

Draft Regulations Confirm the PWFA Provides Broad Coverage for Known Limitations

One of the main differences between the PWFA and the ADA is that the PWFA provides broad coverage for "known limitations" that do not necessarily rise to the level of a "disability" under the ADA. The PWFA defines "known limitations" as physical or mental conditions related to, affected by, or arising out of, pregnancy, childbirth, or related medical conditions that the employee or applicant—or the representative of the employee or applicant—has communicated to the employer. The EEOC's draft regulations provide additional operative definitions, including:

• "Known" means that the employee or applicant, or a representative of the employee or applicant, has communicated the limitation to the employer.
• "Limitation" means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The limitation may be modest, minor, and/or episodic, and broadly includes health care for issues related to pregnancy, childbirth, or related medical conditions – including to maintain the health of an employee or applicant, or their pregnancy. Notably, the draft regulations clarify that the standard for whether a worker has a "known limitation" shall be construed broadly to the maximum extent permitted by the PWFA.
• "Pregnancy" and "childbirth" are also defined broadly and include but are not limited to: current pregnancy; past pregnancy; potential or intended pregnancy; labor; and childbirth (including vaginal and cesarean delivery).
• "Related medical conditions" are also defined broadly and include conditions which relate to, are affected by, or arise out of pregnancy or childbirth. The draft regulations set forth an extensive list, including 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. "Related medical conditions" also include conditions that existed before pregnancy or childbirth, but that may be or have been exacerbated by pregnancy or childbirth..

Draft Regulations Further Define Qualified Individuals and Applicable Time Periods for Limitations

The PWFA extends protections to "qualified employees" who, with or without reasonable accommodation, can perform essential job functions. In addition, employees and applicants who cannot perform essential function(s) of their job may also be qualified if the inability to perform the function is for a "temporary period" and the essential function(s) can be resumed "in the near future" (if the employee can be reasonably accommodated). The terms "in the near future" and "temporary period" are not defined by the PWFA but are addressed in the draft regulations.

Although it is not clear from the PWFA, the draft guidance specifies that definition of "qualified" in the PWFA is a two part definition, and the first part of the definition applies to those who can perform essential functions and the second part of the definition (and analysis to determine if an individual is qualified) is only relevant in circumstances where an individual cannot perform an essential function.

In addition, based on the two part definition in the PWFA, the draft regulations set forth a separate analysis to determine whether an individual who cannot perform essential functions is qualified, including:

1. Whether the inability to perform the essential functions is for a temporary period – where "temporary" means "lasting for limited time, not permanent, and may extend beyond 'in the near future;'"
2. The essential functions could be performed in the near future – where "in the near future" means "the ability to perform the function will generally resume within forty weeks of its suspension;" and
3. The employee can be reasonably accommodated.

The draft regulations note that this could be accomplished with the temporary suspension of essential functions, including reassignment of duties, a temporary transfer, or participation in a modified light duty program. Significantly, while the draft regulations define "in the near future" as 40 weeks from the start of the temporary suspension of the essential function, the EEOC's draft guidance indicates that employees may need (1) accommodations because of pregnancy, (2) leave to recover from childbirth, and (3) additional accommodations (including the suspension of essential functions) upon returning to work. This means the determination of "in the near future" would need to be made each time an employee requests an accommodation related to the suspension of an essential function – and that the time period could be considerably longer than 40 weeks. The EEOC is seeking comments on the defined time period of "in the near future," including whether a one-year time period should be implemented, and whether the periods of suspension of temporary functions during pregnancy and post-pregnancy should be combined.

Draft Regulations Contemplate the Temporary Suspension of Essential Functions

Under the ADA, covered employers are already required to reasonably accommodate qualified employees and applicants, unless the employer can prove that doing so would impose an "undue hardship." However, the draft PWFA regulations identify types of potential reasonable accommodations and expressly state that potential reasonable accommodations include the temporary suspension of essential functions – which is a significant deviation from the ADA and equivalent state laws. Other types of reasonable accommodations include: (1) modifications or adjustments to a job application process that enable an applicant to be considered for the position; (2) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held, that enable a qualified employee or applicant to perform the essential functions of the position; or (3) modifications or adjustments that enable a qualified employee or applicant to enjoy equal benefits and privileges of employment.

Within the general categories of reasonable accommodations listed above, the draft regulations include a few specific examples: job restructuring, modified work schedules, reassignment to vacant positions, temporarily suspending one or more essential functions, use of devices, additional breaks, telework, time off for medical appointments, and the use of paid and unpaid leave.

Further,the draft regulations generally define "essential functions" as "the fundamental job duties of the employment position the employee or applicant holds or desires," but also set forth specific factors to consider when determining essential functions. A job function may be considered "essential" if, for example: the reason the position exists is to perform that function; a limited number of employees is able to perform that function; and/or the function is so highly specialized that employees are typically hired for their ability to perform this function.

The draft regulations also include a non-exhaustive list of "evidence" that can help to determine whether a particular function is essential, such as: the employer's judgement; written job descriptions; the amount of time spent on the job performing the function; the consequences of not requiring current employees to perform the function; the terms of a collective bargaining agreement; and the work experience of current or past employees in the job. Presumably the detailed guidance pertains to determining whether a qualified individual or applicant is requesting the temporary suspension of an essential function.

Draft Regulations Provide Framework for Evaluating Undue Hardship and Provide a List of Presumptively Reasonable Accommodations

The draft regulations also provide a two-tiered framework for evaluating undue hardship, including a secondary test if a qualified employee requests the suspension of one or more essential functions.

First, the draft regulations include a list of factors to consider when determining whether an accommodation would impose an "undue hardship" for an employer. These factors include: (a) the nature and cost of the accommodation; (b) the financial resources of the facility involved in providing the reasonable accommodation, the number of persons employed at the facility, and the effect on expenses and resources; (c) the employer's financial resources, the size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities; (d) the employer's operation(s), including the composition, structure, and functions of the workforce, and the geographic separateness and administrative or fiscal relationship of the facility to the employer; and (e) the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.

Second, if a qualified employee requests the suspension of one or more essential functions, the employer must consider additional factors in determining whether the accommodation imposes undue hardship. As well as the above-listed factors, additional factors include: (i) the length of time that the employee or applicant will be unable to perform the essential function(s); (ii) whether there is work for the employee or applicant to accomplish; (iii) the nature of the essential function(s), including its frequency; (iv) whether the employer has provided other employees or applicants in similar positions who are unable to perform their essential function(s) with temporary suspensions of essential functions; (v) 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 (vi) whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

Notably, while employers are expected to conduct an individualized assessment of each accommodation request—i.e., assess each potential accommodation on a case-by-case basis—the draft regulations also include a list of accommodations that should virtually always be considered reasonable and not to impose an undue hardship. These accommodations are referred to as "Predictive Assessments" and include: (1) allowing an employee or applicant to carry water and drink as needed during the workday; (2) allowing an employee or applicant additional restroom breaks; (3) allowing an employee or applicant whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee or applicant breaks as needed to eat and drink.

Draft Regulations Provide a Roadmap for the Interactive Process

The draft regulations confirm that once an employer learns or becomes aware of an employee's "known limitation," the employer must take affirmative steps to respond. If the "known limitation" can be easily accommodated (e.g., allowing an employee to eat more frequently), the employer should provide the accommodation as soon as possible. If there are any questions about the "known limitation," or if the employer or the employee wants to explore potential reasonable accommodations, the employer and the employee should promptly engage in the interactive process.

Similar to the ADA, the PWFA's interactive process is an informal conversation between the employer and the worker about the scope of the limitation and potential accommodations. However, the draft regulations specifically contemplate the temporary suspension of essential functions in determining reasonable accommodations. The draft regulations provide the following suggested steps for employers to take in the interactive process:

Step 1: Analyze the job's purpose and essential functions.

Step 2: Consult with the employee to determine what kind of accommodation is necessary given the known limitation.

Step 3: In consultation with the employee, identify potential accommodations and assess the effectiveness each would have in enabling the employee to perform the essential functions of the position. If the employee's limitation means that they are temporarily unable to perform one or more essential functions, the parties must also consider whether suspending the performance of one or more essential functions may be a part of the reasonable accommodation 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).

Step 4: Consider the employee's reasonable accommodation preference and implement the accommodation that is most appropriate for both the employee and the employer.

In addition to the steps outlined above, the draft regulations note that employers are permitted to seek medical documentation so long as the request is "reasonable." Importantly, if a request for supporting documentation is determined to be unreasonable, the employer cannot defend against a failure to accommodate claim based on the lack of documentation provided by the worker. The draft regulations define "reasonable documentation" as documentation 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. The draft regulations provide some examples of when it would be unreasonable for an employer to require medical documentation, including:

• When the known limitation and need for reasonable accommodation are obvious;
• When the employee or applicant already has provided an employer with sufficient information regarding a known limitation and that a change or adjustment is needed;
• Requiring documentation other than self-attestation from the employee or applicant regarding the "Predictive Assessment" accommodations (carrying water/drinking, addition breaks for restrooms/eating/drinking, and allowing sitting/standing);
• Requiring documentation other than self-attestation from the employee or applicant regarding lactation or pumping.

The draft regulations and guidance note that an unnecessary delay in responding to a request for a reasonable accommodation may result in a violation of the PWFA. The draft regulations list the factors it will consider in determining whether there has been an unnecessary delay, including reason and length for the delay, who contributed to the delay, and what actions the employer took to provide accommodation during the delay.

Remedies

The EEOC's draft regulations confirm that the PWFA adopts the remedies from Title VII, providing recovery of economic and non-economic damages, including compensatory and punitive damages.

Poster Requirement

Employers are required to post notices in a conspicuous place describing workers' rights under the PWFA. The EEOC recently updated their EEO poster, which employers can use to satisfy the posting requirement.

Takeaways:

• The PWFA draft regulations and guidance are only proposed regulations - they are not in effect and have just been released for public comment. Employers who seek to provide comments to the EEOC should be sure to do so during the 60-day comment period. Employers may be particularly motivated to comment on the concept of temporary suspension essential functions as a reasonable accommodation, the proposed definition of "in the near future" as a 40-week time period (where essential functions could be suspended), and whether periods during pregnancy and post-pregnancy should be combined and/or whether a different time period should be used.
• Although the draft regulations and guidance are only proposed at this point, employers can use them as guidance in navigating pregnancy and childbirth related accommodation requests while awaiting final regulations and guidance.
• Employers should be mindful in navigating the accommodation process with employees, keeping in mind that the PWFA has a broad definition of "qualified employee" and protects employees who cannot perform an essential function of their job if the limitation is temporary and they can resume it "in the near future" – which, according to the draft regulations, means that employers must temporarily suspend essential functions for qualifying individuals, barring undue hardship.
• In addition, employers should anticipate broad coverage of pregnancy- and childbirth-related conditions, and of underlying conditions exacerbated by pregnancy and childbirth. Notably, the proposed regulations identify mental health conditions, fertility treatment, terminations of pregnancy, menstrual cycles, use of birth control, and lactation as pregnancy- and childbirth-related conditions, and also identify numerous underlying conditions that may be exacerbated by pregnancy and childbirth.
• The proposed regulations and guidance set forth a detailed and comprehensive method for engaging in the interactive process and evaluating accommodation requests, including a process to determine if the temporary suspension of essential functions may be a reasonable accommodation, and numerous considerations regarding undue hardship. While such a framework may be helpful, it could also be burdensome to comply with and may make it more challenging to deny accommodation requests.
• Employers should understand that there may be limitations imposed in connection with requesting medical documentation during the interactive process. Specifically, the proposed regulations identify several presumptive reasonable accommodations, and would prohibit employers from seeking medical documentation regarding these requests. This is similar to some existing state laws—including Washington's Healthy Starts Act—which require employers to provide certain pregnancy- and childbirth-related accommodations without supporting documentation.
• Employers should carefully review their current policies and practices to ensure compliance with the PWFA. Additionally, employers should train their managers and supervisors to recognize pregnancy- and childbirth-related requests in order to ensure that requests are promptly addressed to avoid a potential violation, including providing interim accommodations while waiting for reasonable supporting documentation.

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