The Equal Employment Opportunity Commission recently published proposed regulations to implement the Pregnant Workers Fairness Act (which became effective June 27, 2023). We covered the new law here, explaining how it requires covered employers 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 the employer an undue hardship. 

The proposed regulations are open for public comment through October 10, 2023, and must be finalized and implemented by December 29, 2023. Although the proposed regulations could change after the commenting period, their current form offers perspective on how the EEOC believes the PWFA should be interpreted.

Here are five significant ways the proposed regulations could change how US employers accommodate pregnant workers and those with “related medical conditions”:

(1) Potentially expanding what is a “known limitation”

Under the proposed regulations, the physical or mental condition leading the worker to seek an accommodation can be a modest, minor, and/or episodic problem or impediment: there is no threshold of severity required under the PWFA. The condition does not need to rise to the level of a “disability” as defined by the ADA.

(2) Expanding coverage for pre- and postpartum conditions

The proposed regulations provide that the phrase “pregnancy, childbirth, or related medical conditions” has the same meaning as used in Title VII of the Civil Rights Act. The EEOC offers numerous examples of the circumstances that the PWFA could cover.

• “Pregnancy” and “childbirth” include a current pregnancy, past pregnancy, potential or intended pregnancy, labor, and childbirth (including vaginal and cesarean delivery).

• Examples of “related medical conditions” include termination of pregnancy (such as by miscarriage, stillbirth, or abortion), infertility, fertility treatment, use of birth control, menstrual cycles, and postpartum depression. 

Accordingly, under the proposed regs, it is not necessary that an employee or applicant be or have been pregnant or have given birth to earn entitlement to receive a reasonable accommodation under the PWFA. Also, existing health conditions that are exacerbated by pregnancy or childbirth, such as anxiety or high blood pressure, would also be covered conditions.

(3) Broadening who is entitled to an accommodation

Under the regulations, and unlike under the ADA, an employee or applicant may qualify even if they cannot currently perform one or more essential functions of the job.

The proposed regulations identify two definitions for “qualified” individuals under the PWFA. The first pulls language from the ADA (“‘an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position’ is qualified”).

However, the second definition includes an employee or applicant even if they cannot perform one or more essential functions of their position where: (1) the inability to perform the essential function(s) is “temporary,” (2) the essential function(s) could be performed “in the near future,” and (3) the inability to perform the essential function(s) can be reasonably accommodated.

The proposed rules further define the terms “temporary” (lasting for a limited time, not permanent, and may extend beyond “in the near future”) and “in the near future” (generally within forty weeks from the start of the temporary suspension), which were not defined in the PWFA. The EEOC is seeking comment on whether the 40-week period should be extended to 52 weeks.

Bottom line: the EEOC’s proposal would broaden the universe of who is potentially protected under the PWFA (when compared to who the ADA protects) by expanding the threshold for coverage.

(4) Eliminating an employer’s ability to request supporting medical documentation in some cases

The proposed regulations identify four accommodations that the EEOC believes are “simple modifications” that “in virtually all cases” are reasonable and presumptively do not impose an undue hardship.

These “predictable assessment” 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, as needed, to eat and drink. 

The EEOC takes the position that, with these requests, it is not reasonable for an employer to request documentation beyond a self-attestation. As such, it would be paramount to train front line management on how to quickly process such requests and do so without obtaining medical documentation.

(5) There are myriad ways to accommodate covered workers

The EEOC outlines a non-exhaustive list of what it considers potential accommodations. Whether a particular request has to be provided turns on the individual circumstances of each situation, including whether the request would impose an undue hardship.

The list includes:

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.  

Next Steps for US Employers

• Review the proposed regulations, particularly the examples provided, to understand how the EEOC currently interprets the PWFA.
• Strategize any revisions to handbooks, policies, and procedures, particularly those outlining how to request an accommodation and engage in the interactive process, while keeping in mind that the proposed regulations are still under review and subject to change. Keep in mind that the proposed regulations prohibit a blanket requirement that a worker requesting an accommodation must be examined by a healthcare provider selected by the employer.
• Train human resources representatives, supervisors, and managers on PWFA requirements and on responding to requests for accommodations for pregnancy-related or childbirth-related conditions, including the (potential) “predictable assessment” accommodations.