Key Takeaways

• The PWFA requires covered employers to provide reasonable accommodations for a known limitation in connection with pregnancy, childbirth or "related medical conditions."
• “Related medical conditions” include past pregnancy, potential or intended pregnancy, infertility treatment, use of contraception, lactation, breastfeeding, and the decision to have or not to have an abortion, among other conditions.
• Identified reasonable accommodations include temporary suspension of one or more essential functions of the job, telework, job restructuring, reserved parking spaces, modified work schedules, more frequent breaks, modification of equipment, uniforms, or devices, additional unpaid leave, and light duty.

In an update to our January 5, 2023 post and our June 27, 2023 post regarding the Pregnant Workers Fairness Act (“PWFA”), which took effect in late June, the Equal Employment Opportunity Commission (“EEOC”) has released much-anticipated proposed regulations pertaining to compliance and enforcement of the PWFA. As we’ve discussed, the PWFA requires employers with 15 or more employees to provide reasonable accommodations for a known limitation in connection with pregnancy, childbirth, or related medical conditions of qualified employees. We anticipate that the EEOC’s proposed regulations will be published in the Federal Register in early to mid-August, which will then begin a 60-day public comment period during which all interested parties may submit their thoughts or concerns, which could result in the EEOC revising the proposed regulations as presently drafted.

Proposed Regulations

The EEOC’s proposed regulations provide for two definitions of “qualified” employees who are afforded the protections of the PWFA. The first tracks the definition set forth in the Americans with Disabilities Act (“ADA”): “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.” Notably, the second definition clarifies that an employee can be considered qualified under the PWFA even if they cannot perform one or more essential functions of the job. To be considered qualified under the latter definition, the following must be true: (i) the inability to perform the essential function must be temporary; (ii) the employee should be able to perform the essential function “in the near future”; and (iii) the temporary inability can be reasonably accommodated. The EEOC explained that “in the near future” generally means 40 weeks from the start of the temporary suspension of an essential function.

Additionally, the regulations set forth a very broad definition with respect to the time and scope of “pregnancy, childbirth, or related medical conditions,” including those that existed before pregnancy or childbirth but were exacerbated by pregnancy or childbirth. Notably, potential pregnancy, lactation, birth control use, menstruation, miscarriages, and abortion also constitute “related medical conditions” that must be accommodated. Employers must also be aware that the proposed regulations confirm that an employee does not have to use medical terms, mention the PWFA, or even identify a specific condition in order to be eligible for a reasonable accommodation under the PWFA.

The proposed regulations also provide several examples of what reasonable accommodations can be under the PWFA, which include but are not limited to: (i) job restructuring; (ii) modified work schedules; (iii) more frequent breaks for use of the restroom, drinking, eating, and/or resting; (iv) modification of equipment, uniforms, or devices; (v) use of paid leave and additional unpaid leave; (vi) light duty; (vii) telework; (viii) temporary suspension of one or more essential functions of the job; (ix) reserved parking spaces; and (x) “other similar accommodations.”

The EEOC’s proposed regulations also provide insight in determining whether the employee is qualified, what the “known” limitations are, and how to consider particular reasonable accommodations. For example, one scenario illustrates an employee experiencing nausea and vomiting in her first trimester of pregnancy, which makes her commute very difficult. When the employee requests to work from home for the next two months (and her doctor believes the nausea will pass after that time), the employer must grant the requested accommodation (or another reasonable accommodation) in order to accommodate the employee’s commuting difficulties where her work could be done remotely, absent the employer’s suffering an undue hardship. The PWFA requires the employer to engage in an interactive process akin to that mandated by the ADA, which involves communication and good faith exploration of possible accommodations. The proposed regulations confirm that employers are not compelled to provide the specific accommodation requested by the employee if an alternative reasonable accommodation is available.

The proposed regulations also clarify whether an employer may request medical documentation in conjunction with assessing an employee’s request. The EEOC recognizes that some pregnant workers may experience limitations (and require accommodations) before seeing a medical provider (for example, with early onset morning sickness) or be otherwise unable to obtain a medical appointment. Thus, the proposed regulations encourage (but do not require) employers to grant interim accommodations even where they might otherwise require medical documentation from the employee. Further, the proposed regulations caution that employers may only require supporting documentation “if it is reasonable to require documentation under the circumstances for the covered entity to determine whether to grant the accommodation.” The regulations caution that it is not reasonable to require such documentation “when both the limitation and the need for reasonable accommodation are obvious” or where the employee or applicant “has already provided the employer with sufficient information to substantiate that the worker has a known limitation and needs a change or adjustment at work.” It is also considered unreasonable for the employer to require documentation where the worker states or confirms they are pregnant and seeks the accommodations of: (i) carrying water and drinking, as needed; (ii) taking additional restroom breaks; (iii) sitting, if the work requires standing, or standing, if the work requires sitting; and (iv) breaks, as needed, to eat and drink. Finally, the EEOC considers it unreasonable to require medical documentation “when the limitation for which an accommodation is needed involves lactation.” Therefore, it is imperative that employers remain vigilant on the question of whether they should request medical documentation supporting an employee’s accommodation request under the PWFA.

It remains the case that an employer need not provide a reasonable accommodation if it would impose an undue hardship on the employer. The proposed regulations clarify that there is an array of factors to be considered when determining whether an undue hardship will result, with none being dispositive. These factors include: (i) the nature and net cost of the accommodation; (ii) the financial resources of the facility involved with the reasonable accommodation; (iii) the effect on the company’s expenses and revenues; (iv) the financial resources of the covered entity and overall size of the business; (v) the type of business operation; and (vi) the impact of the accommodation on the facility, including the impact on others as they perform their duties and on the facility in conducting its business. The proposed regulations caution, however, that “[g]iven the simple and straightforward nature of these modifications, they will, as a factual matter, virtually always be found to be reasonable accommodations that do not impose significant difficulty or expense (i.e., undue hardship). Therefore, with respect to these modifications, the necessary individualized assessment should be particularly simple and straightforward.”

Bottom Line

Although the proposed regulations may not be in final form, and the comment period is in its infancy, remember that the PWFA is already in effect, and the EEOC has already been accepting charges of alleged PWFA violations. Because the EEOC authored these regulations and it is the agency tasked with enforcing the PWFA, these proposed regulations can be used as a guide for employers to better anticipate and begin efforts to ensure future compliance. Employers should immediately review their policies to confirm they are aligned with the PWFA’s mandates (along with those in any other applicable state and local laws regarding pregnancy protections) and update them as necessary. 

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