On August 11, 2023, the Equal Employment Opportunity Commission (“EEOC”) issued a Notice of Proposed Rulemaking (“NPRM”) to implement the Pregnant Workers Fairness Act (“PWFA”). The PWFA went into effect on June 27, 2023, and requires employers with at least 15 employees to provide employees and job applicants with known limitations related to pregnancy, childbirth, or related medical conditions, with reasonable accommodations to perform the essential functions of their jobs.
The EEOC’s proposed regulations address numerous aspects of the PWFA, including conditions covered under the PWFA, definitions of key terms, and examples of reasonable accommodations. While the EEOC’s proposed regulations are not yet finalized, they provide employers with guidance regarding the EEOC’s current enforcement position as to the PWFA.
Key Definitions
- The Proposed Regulations Broadly Define “Pregnancy, Childbirth, or Related Medical Conditions.”
The EEOC’s proposed regulations broadly define “pregnancy, childbirth, or related medical conditions” to include current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping) and conditions related to lactation, use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, having or choosing not to have an abortion, anxiety, depression, psychosis or postpartum depression, and other post-pregnancy limitations or complications that are a consequence of pregnancy. While this list is not exhaustive, it broadens the protections offered to pregnant employees under the Americans with Disabilities Act (“ADA”) and identifies various “pregnancy-related” conditions that may not be immediately apparent to employers.
- The PWFA Includes Two Definitions of “Qualified Individual.”
When determining if an employee or applicant is “qualified,” the EEOC’s proposed regulations adopt the ADA’s familiar definition of “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.” However, the PWFA also significantly expands the definition of “qualified individual” to include an employee or applicant who cannot perform one or more essential functions of the job if (1) the individual is unable to perform the essential function(s) for a “temporary” period or is expected to be able to perform the essential function “in the near future;” and (2) the inability to perform the essential function(s) can be reasonably accommodated.
The proposed regulations define the term “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’ The proposed regulations further define “in the near future” as meaning that “the ability to perform the function will generally resume within forty weeks…” of the employee or applicant not being able to perform the essential job function. Employers should be aware that the proposed regulations do not set one forty-week limit for all job functions. Instead, under the proposed regulations, employers should understand that this forty week period applies to the individual’s inability to perform each essential function separately. To be clear, this does not mean that the essential function(s) must always be suspended for forty weeks, as the actual length of the temporary suspension will depend on what the particular employee requires. Moreover, employers are not required to automatically grant an employee’s request to temporarily suspend an essential function for forty weeks—particularly if doing so would create an undue hardship.
Reasonable Accommodations & “Predictable Assessments.”
The PWFA requires covered employers to provide reasonable accommodations to a qualified employees’ or applicants’ known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operations of the business. The EEOC’s proposed regulations provide an extensive list of reasonable accommodations that address known limitations related to pregnancy, childbirth or related medical conditions. These reasonable accommodations include frequent breaks; sitting/standing; schedule changes, part-time work, and paid and unpaid leave; telework; reserved parking; light duty; making existing facilities accessible or modifying work environment; job restructuring; temporarily suspending one or more essential functions; acquiring or modifying equipment, uniforms or devices; and adjusting or modifying examinations or policies.
The proposed regulations also categorize a limited number of accommodations as “predictable assessments,” which employers should grant “in virtually all cases.” The proposed regulations note that such accommodations will rarely constitute an undue hardship because of the temporary nature of the accommodation and the low cost to the employer. These predictable assessments include: (1) allowing an employee to carry water and drink in the work area; (2) allowing additional restroom breaks; (3) allowing an employee whose work requires standing to sit and vice versa; and (4) allowing breaks, as needed, to eat and drink.
Next Steps
Employers can submit comments regarding the contents of the proposed regulations electronically until October 10, 2023 by accessing the Federal eRulemaking Portal. While the EEOC’s proposed regulations will not be finalized until after the sixty-day comment period ends, the PWFA has been in effect since June 27, 2023. Therefore, employers may consider reviewing their policies and processes regarding accommodations related to pregnancy, childbirth or related medical conditions, and consider whether any changes may be necessary. Employers should also consider reviewing the proposed regulations and the examples of reasonable accommodations contained therein to develop a better understanding of their current obligations under the PWFA.
