We have previously discussed the passage of the Pregnant Workers Fairness Act (PWFA), which requires employers with at least 15 employees to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. Last month, the Equal Employment Opportunity Commission (EEOC) published proposed regulations that provide its interpretation of the PWFA and provide detailed examples intended to help employers comply with their obligations under the PWFA. Although the regulations are only proposed, the PWFA is already in effect, and the regulations serve as a useful guide to the EEOC’s current position regarding enforcement of the PWFA. Some of the key provisions of the proposed PWFA regulations are highlighted below.

1. The PWFA regulations include familiar concepts like the interactive process and undue hardship.

The proposed PWFA regulations rely heavily on concepts from the ADA, adopting some of the ADA’s definitions including “undue hardship,” “essential job functions,” “interactive process,” “reasonable accommodation,” and “individualized assessment.” In many areas, though, the PWFA provides the employee with more flexibility than the ADA.

2. The PWFA deems an employee qualified for a position even if the employee temporarily cannot perform an essential job function.

The proposed regulations defined a “qualified individual” to include:

• those employees and applicants who can perform the essential job functions with or without a reasonable accommodation, like the standard under the ADA, and
• employees and applicants who cannot perform one or more essential job functions, so long as
  • a pregnancy-related condition causes the inability to do so,
  • the inability to perform the essential function(s) is “temporary,”
  • the individual can perform the essential function(s) “in the near future,”
  • and the employer can reasonably accommodate the employee’s inability to perform the essential function(s).

The proposed regulations define “in the near future” as 40 weeks from the employee not being able to perform the essential job function. The EEOC proposes that the time frame would restart for a request after returning to work from leave, so an employee could be unable to perform an essential job functionfor up to 40 weeks during the employee’s pregnancy, and be unable to perform the same or a different essential function for up to another 40 weeks after the employee returns to work following childbirth.

The PWFA regulations even suggest that temporarily suspending one or more essential job functions could constitute a reasonable accommodation, which is a significant departure from the requirements of the ADA. In determining reasonableness, the EEOC proposes that employers consider whether there are other employees, temporary workers, or even third parties who can perform or be temporarily hired to perform the essential function(s) in question, or whether the essential function can simply be postponed or remain unperformed for any length of time.

3. The proposed rule includes an expansive definition of physical and mental conditions arising before, during, and after pregnancy.

The PWFA applies to “pregnancy, childbirth, or related medical conditions.” The proposed regulations take an expansive view of that phrase, to include “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, among other conditions.” The rule also notes that pre-existing conditions that are exacerbated by pregnancy or childbirth may also qualify under the “related medical conditions” aspect of the PWFA, such as high blood pressure, anxiety, depression, diabetes, back issues, or carpal tunnel syndrome.

4. The condition does not have to be severe or rise to the level of a disability to qualify under the PWFA.

Reasonable accommodations are required for “known limitations,” which do not have to rise to the level of a “disability” under the ADA. Under the proposed regulations, the term “limitations” has no required level of severity. The physical or mental condition can be a “modest, minor, and/or episodic impediment or problem” and includes a need or problem related to maintaining the pregnant employee’s health or the health of their pregnancy. The EEOC anticipates that the determination of whether there is a “known limitation” will be straightforward and accomplished through the interactive process (discussed below) without the need for documentation or verification from the employee.

5. The regulations provide helpful examples of accommodations and suggest that certain accommodations are considered to be “presumptively” reasonable.

The regulations provide examples of possible reasonable accommodations like frequent breaks, the ability to eat or drink water at more frequent intervals, changes in the requirements to sit or stand, appropriately-sized uniforms and safety apparel, schedule changes and part-time work, remote or telework, receiving closer parking, job restructuring, leave, and temporarily suspending one or more essential job functions. The proposed regulations set forth the following four specific accommodations as per se reasonable and presumptively not an undue hardship: (1) carrying water and drinking as needed in the employee’s work area; (2) taking additional restroom breaks; (3) alternating between sitting and standing; and (4) taking breaks as needed to eat and drink.

Employees would likely be entitled to some period of unpaid leave as an accommodation even where they would not qualify for or be eligible for leave under the FMLA. An employee might also be entitled to paid leave as an accommodation depending on the employer’s benefits and policies for other types of leave. However, employers cannot require that an employee take a leave of absence (whether paid or unpaid) if another reasonable accommodation can be provided that would allow the employee to keep working.

6. Employers should permit an employee or applicant to request accommodations through multiple avenues and means.

The PWFA requires the known limitation to be “communicate[d] to the employer.” The regulations interpret that requirement to mean the employee must either communicate with a supervisor, manager, someone who has supervisory authority for the employee (or the equivalent for an applicant), or human resources personnel, or by following the covered entity's policy to request an accommodation. The regulations place particular emphasis on making this easy for the worker to do, particularly for straightforward accommodations such as those discussed above to be presumptively reasonable. The employee need not mention the PWFA or use any specific words or phrases.

7. Employers should engage in an interactive process similar to that provided for by the ADA.

When an employee with a known limitation has requested a reasonable accommodation regarding the performance of her job, the employer should engage in an interactive process with the employee, including:

• Consult with an employee with a known limitation to determine what kind of accommodation might be necessary;
• If necessary, analyze the particular job involved and determine its purpose and essential functions;
• 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 of the position, 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 and the employee could perform the essential function(s) in the near future (generally within 40 weeks); and
• Consider the preference of the employee to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

Unlike the ADA, it may not be necessary under the PWFA to identify the precise limitation because the limitation might be readily known. An employer may seek documentation if reasonable under the circumstances. However, employers may not seek supporting documentation if (a) “the limitation and the need for reasonable accommodation are obvious” and the employee confirms the limitation and need; (b) when the employee has provided the employer with enough information to substantiate the known limitation and need for an accommodation; (c) if the accommodation is one of the four listed as presumptively reasonable, and the employee confirms the need; or (d) if the accommodation is related to lactation or pumping and the employee confirms the need.

Employers should consider these proposed regulations when considering requests for accommodation from their pregnant or postpartum employees and applicants, review their policies and current accommodation processes to ensure compliance with the PWFA, and ensure they have posted the updated version of the EEO Poster. In the meantime, employers can provide comments on the proposed regulations until October 10, 2023. Maynard Nexsen regularly works with employers to ensure compliance with the PWFA, Title VII, the ADA, the PUMP Act, and other applicable state and federal laws. With any questions about the PWFA or the EEOC’s regulations, contact any member of our Employment & Labor Law Practice Group for advice.