The Equal Employment Opportunity Commission (EEOC) has proposed new regulations seeking to clarify the implementation of the Pregnant Workers Fairness Act (PWFA), which became law earlier this year.

The PWFA’s Requirements

Applying to employers with at least 15 employees, the PWFA protects employees who are pregnant, have given birth or suffer from related medical conditions, by requiring employers to make additional, reasonable accommodations for these employees. Specifically, employers must:

• Provide reasonable accommodations for the known limitations of covered employees unless the employer can show undue hardship;
• Provide employment opportunities to qualified individuals or employees regardless of the need for reasonable accommodations;
• Not require a covered employee to take leave (paid or unpaid) if a reasonable accommodation will suffice to allow the employee to remain at work; and
• Not take adverse action against an employee based on the need for accommodation or making a request for accommodation.

The Proposed EEOC Rules

The proposed rules would require employers to provide reasonable accommodations for employees with a “known limitation,” defined as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the covered entity whether or not such condition meets the definition of a disability under the ADA.” Moreover, the rules would require accommodation even if the condition is “modest, minor and/or episodic” in nature. This could include: (a) the termination of pregnancy; (b) infertility and fertility treatment; (c) anxiety, depression, psychosis or postpartum depression; (d) menstrual cycles; (e) use of birth control; and (f) lactation and conditions related to lactation.

Essential Functions Requirement Modified

The PWFA itself already departs from the ADA by considering employees to be “qualified” for their positions whether or not they can perform the essential functions of their job. Under the ADA, an employee is only considered “qualified” if they can perform the essential functions of their job with reasonable accommodations. Under the PWFA, employees are considered qualified even if they cannot perform the essential functions of their job so long as the inability is “temporary,” the worker could perform the essential functions “in the near future” and the inability to perform the essential functions can be reasonably accommodated.

The proposed rules further depart from the ADA by requiring an employer to accommodate these employees’ known limitations for at least forty (40) weeks. Under the Proposed rules, an employer may also be required to provide them for much longer absent a showing of undue hardship. Finally, under the proposed rules, the following accommodations will generally be considered reasonable—and therefore not undue hardships for the employer: (a) taking frequent breaks; (b) sitting/standing; (c) allowing schedule changes and part-time work; (d) allowing telework; (e) restructuring jobs; and (f) temporarily suspending one or more essential job functions.

The proposed rules also require more of employers than ever before by asking them to provide accommodations like the suspension of essential job functions, which is not considered to be a reasonable accommodation under the ADA. The proposed rules suggest that employers may be required to have other employees perform these duties or to hire temporary labor to perform these duties as an accommodation to the qualified, covered employee.

Effect on Documentation

Employers with policies requiring employees to provide reasonable documentation to support their request for accommodation under the ADA may find the delay associated with such a request creates issues under the proposed rules. In fact, the proposed rules prohibit the implementation of this kind of blanket policy requiring documentation. To avoid creating an “unnecessary delay” in accommodation, employers must act quickly and possibly even provide a temporary or intermittent accommodation before receiving sufficient documentation to allow them to arrive at a final accommodation for a qualifying condition.

Moreover, what constitutes “reasonable documentation” under the proposed rules is different than the ADA. “Reasonable documentation” is limited to information sufficient to confirm that the employee has a physical or mental condition that is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that requires a change or adjustment at work for the employee for that reason.

What Employers Need to Know

The proposed rules are open for public comment until October 10, 2023. Whether the actual rules implemented are consistent with the proposed rules, some rule will be implemented that requires employers to do more than they ever have before to accommodate pregnancy issues.  Employers should warm up to the idea that new obligations are coming and be on the lookout for further updates from Gray Reed's Labor and Employment Practice Group when that moment arrives. 

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