On August 7, 2023, the US Equal Employment Opportunity Commission (EEOC) released a proposed rule to implement the Pregnancy Workers Fairness Act, which went into effect on June 27, 2023.

As reported in AFS’s previous post, the Act requires employers with 15 or more employees to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations would cause the employer an undue hardship.

Certain key aspects of the 275-page proposed rule are summarized below.

Pregnancy, Childbirth, or Related Medical Conditions

The Act covers pregnancy, childbirth, or related medical conditions. While these medical conditions will usually “be obvious,” the proposed rule clarifies that this 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. There is no threshold of severity, and people with healthy, normal pregnancies can seek accommodation with no minimum level of need.

Reasonable Accommodations

The rule provides a non-exhaustive list of reasonable accommodation such as:

• Frequent breaks;
• Sitting/standing;
• Schedule changes, part-time work, and paid and unpaid leave;
• Telework;
• Reserved parking spaces;
• Light duty;
• Modifying the work environment, such as by providing access to an elevator, moving the employee’s workspace closer to the bathroom or away from fumes or chemicals, or providing a fan to regulate temperature;
• Removing a marginal function, such as, for example, requiring a pregnant employee to climb a ladder or occasionally lift a heavy box;
• Temporarily suspending one or more essential functions;
• Acquiring or modifying uniforms or safety equipment to account for changes in body size during and after pregnancy;
• Adjusting or modifying exams or policies, such as postponing a required workplace exam that requires physical exertion; and
• Leave, including intermittent leave, to recover from pregnancy, childbirth, and related medical conditions, even when an employer does not offer parental leave as a benefit.

Qualified Employee

The Act defines “qualified employee” as any employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, who shall be qualified if: (1) any inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated.

The proposed rule defines “in the near future” as within 40 weeks from the start of the temporary suspension of an essential function. “Temporary” is defined as “not permanent,” but may extend beyond “in the near future.” The actual length of a temporary suspension, if granted, will depend on what the employee requires.

Undue Hardship

The Act uses similar language as the Americans with Disabilities Act (ADA) in defining undue hardship as a significant difficulty or expense relative to the employer’s overall resources. In considering whether the temporary suspension of an essential function is an undue hardship, the proposed rule lists factors to consider:

• The length of time that the employee will be unable to perform the essential function(s);
• Whether there is work for the employee to accomplish;
• The nature of the essential function, including its frequency;
• Whether the employer has provided other employees in similar positions who are unable to perform essential function(s) of their positions with temporary suspensions of those functions and other duties;
• If necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s) in question; and
• Whether the essential function(s) can be postponed or remain unperformed for a length of time and, if so, for how long.

The proposed rule lists four types of accommodations that will virtually never impose an undue hardship:

• Allowing an employee to carry water and drink, as needed, during the work day;
• Allowing an employee additional restroom breaks;
• Allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
• Allowing an employee breaks, as needed, to eat and drink.

Additional Prohibitions

The proposed rule sets out additional considerations for employers in complying with the Act’s requirements:

• Employers are prohibited from unnecessarily delaying responding to request for a reasonable accommodation, and such delay can be actionable even if the accommodation is eventually provided;
• Employers may not justify the denial or delay of a reasonable accommodation based on an employee failing to provide supporting documentation, unless requiring the documentation is reasonable under the circumstances in order for the employer to determine whether to provide such accommodation;
• If there is more than one accommodation available, the employee’s preference should be given the primary consideration. However, the employer has the “ultimate discretion” to choose a reasonable accommodation.

The proposed rule will be published on August 11, 2023, and open for a 60-day comment period.

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