The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023, and requires that employers with 15 or more employees provide reasonable accommodations to qualified employees and applicants with known limitations stemming from, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that providing the accommodation would cause an undue hardship. On August 7, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) proposed regulations under the PWFA.

Although the regulations are only proposed regulations at this point, employers should not ignore them, as they show how the EEOC interprets employers' existing obligations under the PWFA, and they are unlikely to undergo significant change prior to being finalized. The important elements of the proposed regulations include the following:

1. Reliance on ADA Concepts

Employers familiar with the Americans with Disabilities Act (ADA) will find many parallels in the PWFA's proposed regulations. Terms like "undue hardship," "essential job functions," "interactive process," "reasonable accommodation," and "individualized assessment" are taken from the ADA. Employers can and should leverage their ADA interactive process procedures for addressing pregnancy-related conditions, while being careful to take into account the unique aspects of compliance with the PWFA regulations.

2. Potential Temporary Suspension of a Job's Essential Functions

In a significant departure from ADA principles, the proposed regulations provide that an applicant or employee can still be deemed "qualified" for a position even if at present they cannot perform certain essential job functions. This is contingent upon the condition being temporary, with the employee expected to regain capacity "in the near future," and the employer being able to reasonably accommodate the situation without an undue hardship. "In the near future" is defined by the regulations as a period of 40 weeks from the point at which an employee's inability to perform an essential function is identified. Notably, this time frame is applicable to each essential job function individually, potentially entitling covered employees to multiple 40-week periods that may not run concurrently. For example, an employee's pregnancy may trigger a 40-week period wherein the employee cannot perform one essential job function, and then a postpartum, pregnancy-related medical condition may trigger another 40-week period for another essential job function the employee is unable to perform. The EEOC identified this period as something that may be changed in the final regulations.

3. Expanded Definitions

The EEOC enumerates a comprehensive list of medical conditions pertaining to pregnancy and childbirth, including current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and having or choosing not to have an abortion. Employers are encouraged to recognize these conditions as potential triggers for the accommodations required.

4. Reasonable Accommodations and "Predictable Assessments"

The regulations provide an extensive catalog of possible reasonable accommodations, including (i) frequent breaks; (ii) sitting or standing as needed; (iii) schedule changes, part-time work, and paid and unpaid leave; (iv) telework; (v) light duty; (vi) making existing facilities accessible or modifying the work environment; (vii) job restructuring; (viii) acquiring or modifying equipment, uniforms, or devices; and (ix) adjusting or modifying examinations or policies. The regulations also identified four types of accommodations as "predictable assessments" that generally should be considered reasonable accommodations. The predictable assessments allow an individual to (i) carry and drink water as needed; (ii) take additional restroom breaks; (iii) sit or stand as needed; and (iv) take breaks as needed to eat and drink.

The EEOC also provides numerous reasonable accommodation example scenarios that generally favor providing employees with accommodations. In one example, a pregnant employee requests placement in her employer's light duty program because her delivery driving job routinely requires her to lift 30-40 pounds, but because of the pregnancy, her healthcare provider told her that she should not lift more than 20 pounds. The proposed regulations indicate that the employer must place the employee in an open position in the light duty program, even though that program is explicitly reserved only for employees recovering from work-related injuries.

Another example scenario involved a social worker who asks to telework full-time, seeing clients only virtually, so she can rest between appointments because her pregnancy is causing fatigue. The EEOC indicated that, assuming the appointments can be conducted virtually, the social worker can perform the essential functions of her job with the reasonable accommodation of working remotely. If there were certain appointments that must be done in person, the EEOC stated that the reasonable accommodation could be a few days of telework a week, plus other accommodations that would give the employee time to rest, such as assigning in-person appointments at times when traffic will be light, or setting up assignments so that on the days when she has in-person appointments she has breaks between them. Alternatively, the reasonable accommodation could be the temporary suspension of the essential function of in-person appointments. This example is important for employers to bear in mind because it shows the extent of potential obligations. These obligations include allowing remote work when it is generally not allowed and, if in-person work is an essential function of a position, temporarily suspending that requirement. In this example scenario, that could mean allowing remote counseling appointments for clients who are better served by in-person appointments or shifting the burdens of in-person work to other employees for up to 40 weeks unless an undue hardship can be established.

5. Supporting Documentation

Under the proposed regulations, employers cannot request supporting documentation for certain requested pregnancy accommodations:

1. when "the limitation and the need for reasonable accommodation are obvious" and the employee self-attests;
2. when the employee/applicant has provided the employer with enough information to substantiate the known limitation and need for an accommodation;
3. if the accommodation is one of the four listed as a "predictable assessment" and the employee self-attests; or
4. if the accommodation is related to lactation or pumping and the employee/applicant self-attests.

When none of the above circumstances apply, the regulations would limit documentation to "documentation that 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 conditions; and that a change or adjustment at work is needed."

Next Steps for Employers

Employers should update their accommodation policies to ensure that they comply with the potential obligations of the PWFA's proposed regulations, including ensuring that supervisors understand the broad scope of the obligations and the need to properly address accommodation requests.

We will continue to closely monitor the progress of the proposed rulemaking and will provide updates as necessary.