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On Monday, August 7, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released proposed rules for implementing the Pregnant Workers Fairness Act (PWFA). Effective June 27, 2023, the PWFA requires employers to provide reasonable accommodations, absent undue hardship, to applicants and employees with limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The proposed rules address each element of an employer’s obligations under the PWFA and include unique requirements for employers.

PWFA

The PWFA covers employers with 15 or more employees. The Act provides similar protections to employees as those under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA). However, the PWFA imposes new obligations on covered employers, and the proposed rules emphasize the differences between PWFA protections and those under other federal anti-discrimination laws.

Proposed Rules

The proposed rules greatly expand an employer’s obligations under the PWFA. Below are provisions of the proposed rules that are of particular importance to employers:

Definition of Pregnancy, Childbirth, or Related Medical Conditions

The proposed rules broadly define pregnancy, childbirth, or related medical conditions. Under the rules, related medical conditions include current, past, and potential pregnancy; lactation; use of birth control; fertility treatment; menstruation; miscarriages; and abortion.

Definition of Limitation

Additionally, under the proposed rules, the definition of limitation is more expansive than the definition of disability under the ADA. The physical or mental condition that is the limitation under the PWFA may be a modest, minor, and/or episodic impediment or problem, according to the proposed rules. The physical or mental condition also may be that a worker affected by pregnancy, childbirth, or related medical conditions has a need or problem related to maintaining their health or the health of their pregnancy. The definition also includes when a worker is seeking health care related to pregnancy, childbirth, or a related medical condition itself. Thus, under the rules, there is not a specific level of severity required for a physical or mental condition to trigger an employer’s obligation to provide a reasonable accommodation.  

Known Limitation

The proposed rules clarify that an applicant or employee must disclose their limitation under the PWFA to their employer to entitle them to a reasonable accommodation. However, the employer cannot mandate a particular format or method in which the employee or applicant must disclose such limitation. While employers can implement a formal process for requesting accommodations, employees will be still be entitled to reasonable accommodation(s) if they have not followed the formal process but have otherwise informed their employers of a covered limitation.

Qualified Individual

Mirroring the ADA, the PWFA provides that a qualified employee is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position. However, under the PWFA, an employee or applicant is qualified even if they cannot perform one or more essential functions of the job if: (1) the inability to perform the essential function(s) is temporary; (2) the worker could perform the essential function(s) in the near future; and (3) the inability to perform the essential function(s) can be reasonably accommodated. The terms temporary, in the near future, and, can be reasonably accommodated are not defined in the PWFA.

The proposed rules define the term temporary as lasting for a limited time, not permanent, and may extend beyond in the near future. The proposed rules define in the near future as generally 40 weeks. The proposed definition in this section does not mean that the essential function(s) must always be suspended for 40 weeks, or that if an employee seeks the temporary suspension of an essential function(s) for 40 weeks it must be automatically granted. The actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires, and the employer always has available the defense that it would create an undue hardship. However, the mere fact that the temporary suspension of one or more essential functions is needed for any time period, up to and including generally 40 weeks, will not, on its own, render a worker unqualified under the PWFA.

Examples of Accommodations

Reasonable accommodation is a term from the ADA, and the PWFA uses a similar definition. Generally, it means a change in the work environment or how things are usually done. The proposed rules provide specific examples of possible reasonable accommodations under the PWFA, including:

• Frequent breaks;
• Sitting/Standing;
• Schedule changes, part-time work, and paid and unpaid leave;
• Telework;
• Parking;
• Light duty;
• Making existing facilities accessible or modifying the work environment;
• Job restructuring;
• Temporarily suspending one or more essential function;
• Acquiring or modifying equipment, uniforms, or devices; and
• Adjusting or modifying examinations or policies.

Undue Hardship

Undue hardship is also a term from the ADA, and the PWFA uses a similar definition. Generally, it means significant difficulty or expense for the operation of the employer. The proposed rules outline some factors to be considered when determining if undue hardship exists. These are the same factors under the ADA. However, the proposed rules add additional factors that may be considered when determining if the temporary suspension of an essential function causes an undue hardship. These additional factors include: (1) consideration of the length of time that the employee or applicant will be unable to perform the essential function(s); (2) whether there is work for the employee or applicant to accomplish; (3) the nature of the essential function, including its frequency; (4) whether the employer has provided other employees or applicants in similar positions who are unable to perform essential function(s) of their positions with temporary suspensions of those functions and other duties; (5) 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 (6) whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

Simple Modifications

The proposed rules also identify a limited number of simple modifications that, in virtually all cases, will constitute reasonable accommodations that do not impose an undue hardship when requested by an employee due to pregnancy. These modifications are: (1) allowing an employee to carry water and drink, as needed, in the employee’s work area; (2) allowing an employee additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee breaks to eat and drink as needed.

Effective Date

The proposed rules were published in the Federal Register on Friday, August 11, 2023, and members of the public have 60 days to comment. The final rules will likely include changes based on comments from interested parties. The EEOC will issue the final regulations by December 29, 2023.

Implications for Employers

Employers should review the requirements under the proposed rules found in the Federal Register and consult legal counsel to ensure that their policies are compliant with the PWFA and accompanying regulations.

For advice on compliance under the PWFA or other employment matters, please contact BMD Partner and Co-Chair of the Labor & Employment Division, Bryan Meek, at bmeek@bmdllc.com.