On August 7, 2023, the Equal Employment Opportunity Commission (EEOC) issued proposed regulations to implement the new Pregnant Workers Fairness Act (PWFA), which was enacted by Congress last December as part of a federal omnibus funding bill and which became effective on June 27, 2023. The proposed regulations provide guidance on how the EEOC plans to interpret employers’ obligations under the PWFA – and in some cases, expands the obligations beyond even the heightened standards under the Americans with Disabilities Act.
Background on the PWFA. The new law requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth or related conditions, unless it would cause the employer an undue hardship. According to the EEOC, reasonable accommodations are available to help apply for a job; to perform a job; to enjoy equal benefits and privileges of employment; and to temporarily suspend the performance of an essential function of a position, if certain conditions are met. The reasonable accommodation obligation applies even if the employee has an uncomplicated pregnancy, based on the premise “that even uncomplicated pregnancies may create limitations for workers.”
In preparation for and prior to the June 27, 2023 effective date, the EEOC issued informal guidance on the law, as discussed in our March 2023 E-Update. In that guidance, the EEOC noted that federal, state and local laws (including the Americans with Disabilities Act, Title VII, the Family and Medical Leave Act, and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act), may offer additional protections to pregnant workers. It also provided examples of possible reasonable accommodations that employers may be required to provide, including breaks, flexible hours, leave, and avoidance of strenuous activities or dangerous substances.
What the PWFA Does. In the proposed regulations, the EEOC asserts that the PWFA:
- Requires employers to provide a reasonable accommodation for known limitations of a qualified employee or applicant absent an undue hardship
- Prohibits employers from requiring a reasonable accommodation that was not identified through an interactive process
- Prohibits the denial of employment opportunities based on the need to provide reasonable accommodation
- Prohibits employers from requiring employees to take leave if another reasonable accommodation is available
- Prohibits employers from taking adverse action based on a request for or the use of a reasonable accommodation
- Prohibits retaliation for opposing discrimination under the PWFA or participating in a proceeding under the PWFA
- Prohibits interference with an employee’s or applicant’s rights under the PWFA
- Provides remedies for violations
Important Definitions. The EEOC has proposed definitions for certain terms as follows:
- “Known limitation” means a physical or mental condition related to, affected by, arising out of pregnancy, childbirth, or related medical conditions. The limitation need not meet the definition of a disability under the ADA, but may be minor, modest, or episodic. Like the ADA, the ameliorative effects of mitigating measures are not taken into account in determining whether there is a limitation. Any negative effects, however, can be considered in the assessment.
- “Known” means that the employee or applicant, or their employee representative (meaning family member, friend, health care provider or other representative) must communicate the limitation to the employer (meaning a supervisor, manager, or human resources). Such communication may be made orally, and the employer cannot require it to be in writing or any other specific format. The communication need only convey that the individual (1) has a limitation and (2) needs an adjustment or change at work.
- “Related medical conditions” is a non-exhaustive (and extensive) list of various medical conditions that relate to, are affected by, or arise out of pregnancy or childbirth.
- “Qualified employee or applicant” adopts the same ADA definition as meaning an individual who, with or without reasonable accommodation, can perform the essential functions of the job. With particular respect to leave, the EEOC specifies that the relevant question is whether the individual will be able to perform the essential functions at the end of leave. Of particular note and beyond what the ADA expressly provides, the EEOC further asserts that the individual is qualified even if they cannot perform essential functions if (1) the inability is temporary, (2) the individual will be able to perform it “in the near future,” (meaning within 40 weeks), and (3) the temporary inability can be reasonably accommodated (such as by temporary suspension of the function while performing the remaining essential functions, temporary transfer to another position, or light/modified duty).
- “Essential function” has the same meaning as under the ADA, and the analysis for determining whether a function is essential is also the same.
What Reasonable Accommodations Might Be Required? “Reasonable accommodation” includes modification or adjustment to the application process, the work environment or manner/circumstances of performance, or to enable the individual to enjoy equal benefits and privileges of employment. Examples of reasonable accommodation include, but are not limited to:
- Making existing facilities readily accessible and usable
- Job restructuring; modified work schedules; reassignment to a vacant position; breaks; acquisition or modification of equipment, uniforms, or devices; seating; modification of policies; modified/light duty; telework; temporary suspension of an essential function; reserved parking
- Paid or unpaid leave during pregnancy, after childbirth/miscarriage/stillbirth, and to attend appointments. The length, frequency, or unpredictable nature of leave are questions of undue hardship.
- Lactation accommodations (meaning reasonable break time and a private space, per the PUMP Act, as we explained most recently in our May 2023 E-Update). The EEOC goes on, however, to specify that the lactation space should be: in reasonable proximity to the employee’s work area; regularly cleaned; has electricity, appropriate seating and surface to place a pump; and in reasonable proximity to a sink, running water, and a refrigerator for storage.
Notably, the EEOC proposes that the following modifications will “virtually always be reasonable accommodations that do not pose an undue hardship”: allowing the individual to carry water and drink as needed; additional restroom breaks; seating or standing as needed; breaks for eating/drinking.
What Is an Undue Hardship? “Undue hardship” means significant difficulty or expense when considering (1) the nature and net cost of the accommodation, (2) the overall financial resources of the facility, the number of employees there, and the effect on expenses and resources, (3) the overall financial resources of the employer, (4) the type of operation, and (5) the impact of the accommodation on the operation, including the ability of other employees to perform their duties and the facility’s ability to conduct business. This definition mimics that under the ADA, with the addition of the last factor.
Unlike the ADA, the EEOC discusses temporary suspension of an essential funcation at great length. If the individual needs a temporary suspension, the employer must also consider the following factors in determining if doing so would be an undue hardship: the length of time; the availability of other work for the employee; the nature of the essential function, including frequency; whether temporary suspensions of essential functions have been provided for other employees; whether other employees, temps, or contractors can perform those functions; and whether the function can be postponed and for how long.
The Interactive Process. Just as under the ADA, the employer must engage in an interactive process with the individual seeking an accommodation under the PWFA. The employer may request supporting documentation from an appropriate health care provider that is reasonable under the circumstances. Any information received must be kept confidential.
Prohibited Practices. Going beyond the ADA regulations, the EEOC proposes that an “unnecessary delay” in responding to a reasonable accommodation request may be a violation of the PWFA. In determining whether a delay is unnecessary, the following factors should be considered: the reason, the length, each party’s responsibility, whether the employer was engaged in actions related to the reasonable accommodation request during the delay, whether the accommodation is simple or complex, and whether an interim accommodation was offered (leave is not an appropriate interim accommodation if another would allow the employee to continue to work or unless the employee chooses leave).
The individual is not required to accept an accommodation, but if they reject it and cannot perform the essential functions of the job, they will not be considered qualified (unless the temporary inability definition applies).
Although the employer may choose the accommodation if there are multiple options, the proposed regulation asserts that the employer must choose one that provides the individual with equal employment opportunity as other, similarly-situated but non-limited employees.
What Happens Now? Interested members of the public will have 60 days following publication of the proposed rule in the Federal Register from August 11, 2023 (i.e. until October 10, 2023) to comment on the proposed rule (comments may be submitted on the Federal Register webpage). The EEOC must consider such comments prior to issuing a final rule.
By the Way – There’s a Mandatory Poster. As we explained in our June 2023 E-Update, the EEOC has also issued an updated “Know Your Rights” poster (dated June 27, 2023) to add a reference to the PWFA. Employers with 15 or more employees are required to display the current version of this poster in the workplace, or be subject to monetary penalties.