23 August 2023

Pregnant Workers Fairness Act - EEOC Proposed Regulations

Ford & Harrison LLP


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On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) expanding workplace protections for pregnant and nursing employees.
United States Employment and HR
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On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) expanding workplace protections for pregnant and nursing employees. The PWFA builds upon existing protections against pregnancy discrimination under Title VII, the Pregnancy Discrimination Act, and the Americans with Disabilities Act (ADA). The PWFA requires employers with 15 or more employees to engage in an interactive process to provide reasonable accommodations to a qualified employee's or applicant's known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.

On August 7, 2023, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) to implement the PWFA. The NPRM explains how the EEOC proposes to interpret the PWFA and certain terms in the statute. While the EEOC's proposed regulations are not yet in effect, they do provide meaningful insight into how employers should be considering accommodations that may be needed as a result of pregnancy.

The PWFA borrows from Title VII and the ADA in defining many of its material terms and procedures. For example, the PWFA incorporates Title VII's definition of "employer" and Title VII's enforcement procedures. Similarly, the PWFA utilizes the ADA's definitions of the terms "essential function," "reasonable accommodation," and "undue hardship," and uses the same interactive process as is commonly used under the ADA. Because the PWFA borrows language and concepts from these statutes, employers can build on existing policies and procedures. In doing so, employers should be mindful of these expanded protections for pregnant employees.

What is a known limitation?

A known limitation is defined as a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee has communicated to the employer, regardless of whether the condition meets the definition of disability under the ADA. The physical or mental condition that is the limitation may be a modest, minor, and/or episodic impediment or problem. The definition includes when a worker is seeking health care related to pregnancy, childbirth, or a related medical condition itself. The terms "pregnancy, childbirth, or related medical conditions" have the same meaning as in Title VII. The NPRM provides example scenarios of "known limitations" which constitute a request for reasonable accommodations under the PWFA including:

  • A pregnant employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of morning sickness."
  • An employee who gave birth three months ago tells the person who assigns her work at the employment agency, "I need an hour off once a week for treatments to help with my back problem that started during my pregnancy."
  • An employee's spouse, on the employee's behalf, requests light duty for the employee because the employee has a lifting restriction related to pregnancy; the employee's spouse uses the employer's established process for requesting a reasonable accommodation or light duty for the employee.
  • An employee tells a supervisor that she needs time off to recover from childbirth.

Under the proposed rule, a covered entity may require documentation only if it is reasonable to do so under the circumstances for the covered entity to decide whether to grant the accommodation. The regulation provides several examples of when it would not be reasonable for the employer to require documentation including: when the limitation is obvious; when the employee or applicant has already provided sufficient information; when the limitation involves lactation; when a worker at any time during their pregnancy states or confirms that they are pregnant and seeks one of the following accommodations: (1) carrying water and drinking, as needed; (2) taking additional restroom breaks; (3) sitting, for those whose work requires standing, and standing, for those whose work requires sitting; and (4) breaks, as needed, to eat and drink.

Who is qualified?

Under the PWFA, an employee or applicant can meet the definition of "qualified" in one of two ways. First, employees or applicants are qualified if they can perform the essential functions of their jobs with or without reasonable accommodation, which is the same language used in the ADA. Second, employees or applicants can be qualified – even if they cannot perform one or more essential functions of the job – if: (a) the inability to perform an essential function is temporary; (b) the essential function could be performed in the near future; and (c) the inability to perform the essential function can be reasonably accommodated.

The proposed rule defines the terms "temporary" as lasting for a limited time, not permanent, and may extend beyond "in the near future," and "in the near future" as generally within forty weeks from the start of the temporary suspension of an essential function.

The EEOC recognizes physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions for which workers may seek the temporary suspension of an essential function when the worker is not currently pregnant. These conditions include pre-pregnancy limitations such as infertility, and post-pregnancy limitations such as acute cardiovascular problems that are a consequence of the pregnancy. Although the length of pre- and post-partum physical or mental conditions will vary, the EEOC proposes using "generally forty weeks" to measure whether the worker meets the "in the near future" requirement in the second definition of "qualified" in every situation where the reasonable accommodation sought under the PWFA is the temporary suspension of one or more essential functions.

The EEOC emphasizes that the definition in this section does not mean that the essential function(s) must always be suspended for forty weeks. The actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires, and the covered entity always has available the defense that it would create an undue hardship.

What is a reasonable accommodation?

The PWFA borrows the definition of "reasonable accommodation" from the ADA. A modification or adjustment is reasonable if it "seems reasonable on its face, i.e., ordinarily or in the run of cases;" this means it is "reasonable" if it appears to be "feasible" or "plausible." An accommodation also must be effective in meeting the needs of the employee or applicant, meaning it removes a workplace barrier and provides the individual with equal opportunity.

The EEOC has long recognized the use of all forms of paid and unpaid leave as a potential reasonable accommodation under the ADA, including for part-time schedules, and recognizes the same interpretation in its definition of "reasonable accommodation" under the PWFA.

The NPRM provides examples of possible reasonable accommodations including, but not limited to: job restructuring; part-time or modified work schedules; more frequent breaks; acquisition or modification of equipment, uniforms, or devices; allowing seating for jobs that require standing or standing in jobs that require sitting; appropriate adjustment or modification of examinations or policies; permitting the use of paid leave (whether accrued, short-term disability, or another type of employer benefit) or providing unpaid leave, including to attend healthcare-related appointments and to recover from childbirth; assignment to light duty; telework; and, accommodating a worker's inability to perform one or more essential functions of a job by temporarily suspending the requirement that the employee perform that function if the inability to perform the essential function is temporary and the worker could perform the essential function in the near future.

What is an undue hardship?

The PWFA uses the definition of "undue hardship" the ADA. The definition of undue hardship provided in the ADA regulations explains "undue hardship" means significant difficulty or expense incurred by a covered entity.

Under the PWFA, an employer may have to accommodate an employee's temporary inability to perform an essential function. The NPRM adds additional factors that may be considered when determining if the temporary suspension of an essential function causes an undue hardship. These additional factors include consideration of the length of time that the employee or applicant will be unable to perform the essential function(s); whether, there are potential reasonable accommodations related to the temporary suspension of essential functions or otherwise, whether there is work for the employee or applicant to accomplish; the nature of the essential function, including its frequency; whether the covered entity 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; 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 whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

As with other reasonable accommodations, if the covered entity can establish that accommodating a worker's temporary suspension of an essential function(s) would impose an undue hardship if extended beyond a certain period of time, the covered entity would only be required to provide that accommodation for the period of time that it does not impose an undue hardship.

What is a prohibited act?

The PWFA explicitly renders it an unlawful employment practice to:

  • Fail to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, absent undue hardship;
  • Require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation not arrived at through an interactive process;
  • Require a qualified employee to take a paid or unpaid leave of absence if another reasonable accommodation can be provided; and
  • Take any adverse employment action, including denial of employment or employment opportunities, because an employee requests or uses a reasonable accommodation provided under the PWFA.

The PWFA also contains non-retaliation provisions that prohibit adverse action against employees who oppose unlawful conduct or who file a charge, testify, assist, or participate in any manner in an investigation, proceeding or hearing regarding a PWFA violation. The law also proscribes coercion, intimidation, threats, or interference directed toward individuals who exercise their rights under the PWFA or who aid or encourage others in the exercise of such rights.

Remedies available to private-sector employees are the same as those provided under Title VII, including reinstatement, back pay, front pay, compensatory damages, punitive damages, and recovery of attorneys' fees and costs.

Compliance Tips

The EEOC began accepting charges falling under the PWFA on June 27, 2023. For the PWFA to apply, the incident complained about in the charge must have occurred on June 27, 2023 or later. The NPRM is open for public comment until October 11, 2023. The PWFA requires the EEOC to finalize and issue regulations by December 29, 2023.

While the proposed regulations may change in form and substance between now and the final enactment date, the PWFA is currently in legal effect. It is critically important that your managers and human resource professionals are aware of this new law and its implications for pregnant workers. If you have an employee requesting accommodations to the workplace as a result of pregnancy, childbirth, or a related condition, it's important that you engage in an appropriate interactive conversation to determine the needed accommodation and document your conversations accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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