The Pregnant Workers Fairness Act, which became effective on June 27, 2023, expands protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions. When it passed the PWFA, Congress directed the EEOC to issue regulations to implement the PWFA and to provide examples of reasonable accommodations by the end of this year. On August 7, 2023, the EEOC released its 275-page Notice of Proposed Rulemaking (NPRM), seeking public comments on its proposed regulations implementing the PWFA. The EEOC’s Press Release for the NPRM provides a link to the Federal Register, where the Proposed Rulemaking will be published for public comment on August 11, 2023.

While the proposed regulations cover a wide variety of topics, this Insight highlights some of the key provisions of the proposed regulations.

• An Expansive Definition of Physical and Mental Conditions Arising Before, During, and After Pregnancy

The proposed rule takes an expansive reading of “pregnancy, childbirth, or related medical conditions” to include current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions. It also notes that pre-existing conditions that are exacerbated by pregnancy or childbirth may also qualify under the PWFA.

• No Level of Severity Required

In the NPRM, the EEOC explains that under the PWFA, the physical or mental condition that leads an employee or applicant to request an accommodation can be modest, minor or episodic, and there is no requirement that conditions rise to a specific severity threshold. It reminds employers that the PWFA is intended to cover conditions that do not rise to the level of disability as defined by the Americans with Disabilities Act (ADA) and its implementing regulations and is intended to help maintain the individual’s health and ability to work.

• Temporarily Eliminating an Essential Function of the Job: A Broad Definition of the Phrase “in the Near Future”

When Congress passed the PWFA, it defined a “qualified” employee or applicant to not only include an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of a job, but also an employee or applicant who cannot perform an essential function of the job for a temporary period if the person is or is expected to be able to perform the essential function “in the near future,” and the inability to perform the essential function can be reasonably accommodated.

The PWFA did not define either “temporary” or “in the near future.” The NPRM provides a proposed definition of “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” The rule further defines “in the near future” as “generally forty weeks from the start of the temporary suspension of an essential function.”¹ As a result, even if a worker is unable to perform one or more of the essential duties of their job due to pregnancy, childbirth or a related medical condition, if that person is or is expected to be able to perform the essential duties in 40 weeks and the employer can reasonably accommodate the inability to perform that function, the person will be considered a “qualified” employee or applicant under the PWFA.

Additionally, the NPRM proposes that the 40-week period restart once the pregnancy is over and the employee returns to work after leave. In other words, a worker who has returned to work after childbirth may still qualify for an accommodation that involves the elimination of one or more of the essential functions of their job for up to 40 weeks if the employer can reasonably accommodate the person’s inability to perform the essential function, regardless of whether the employer provided the same or a different accommodation either prior to or during the worker’s pregnancy. The EEOC is seeking comments on whether the 40-week period should be extended to 52 weeks after a person returns to work after giving birth.

• Notice of Need for a Reasonable Accommodation and the Interactive Process

The EEOC affirms that the PWFA incorporates the definitions of reasonable accommodation and undue hardship in the ADA, but the agency proposes some changes to these concepts given the aim of the PWFA and the wide range of conditions covered by the PWFA.

For example, the EEOC’s proposed definition of the “interactive process” largely tracks the ADA’s interactive process with a few tweaks. Like the ADA, notice of the need for an accommodation can be conveyed verbally or written, can be expressed in plain language, and it can come from a representative of the employee or applicant. The individual, or their representative, must only identify the relevant limitation and their need for an adjustment at work to trigger an employer’s obligation to engage in the interactive process.

The proposed rule departs slightly from the ADA standard, however. Given the temporary nature of pregnancy-related conditions, the EEOC proposes that employers respond expeditiously to employees’ requests and should consider granting an accommodation request on an interim basis even if the employer believes it needs additional information. The EEOC notes that providing an interim accommodation can be evidence an employer may use to contest a claim that an employer unduly delayed providing a reasonable accommodation. The EEOC cautions that in many instances, the appropriate accommodation should be “obvious” to the employer and/or employee.

• Non-Exhaustive List of Potential Reasonable Accommodations

As directed by Congress, the EEOC provides a number of detailed examples of reasonable accommodations that it asserts would address known limitations related to pregnancy, childbirth or related medical conditions, including:

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

The EEOC seeks public comment as to whether more examples would be helpful, and if so, what additional conditions and accommodations should be identified in the examples.

• “Predictable Assessments”

While the PWFA incorporates the ADA’s definition of reasonable accommodation, which requires an individualized assessment, the EEOC proposes that four specific accommodations be deemed de facto reasonable, referring to these as “predictable assessments.” The proposed rule states that these requested accommodations commonly will be requested and will typically require “modest and minor” alterations in the workplace on a temporary basis. The EEOC presumes that these specific modifications will not impose an undue hardship “in virtually all cases”:

• Allowing an employee to carry water and drink, as needed, in the employee’s work area;
• Allowing an employee to take additional restroom breaks;
• Allowing an employee whose work requires standing to sit and vice versa;
• Allowing an employee to take breaks, as needed, to eat and drink.

As justification for this regulatory reach, the EEOC notes that a number of analogous state laws on the rights of pregnant workers contain similar provisions. The proposed regulations state that this designation would not prevent employers from asserting that any of these accommodations would impose an undue hardship. Notably, the EEOC seeks public comment on these proposed “predictable assessments,” and whether the category should be narrowed or expanded to include other “predictable assessments” related to childbirth and/or related medical conditions.

• Partially Granting a Request for a Reasonable Accommodation

Since the PWFA is intended to encourage employers and employees to engage in the interactive process to arrive at a reasonable accommodation, the proposed regulations make several important observations about the process. First, the NPRM notes that an employer may not simply impose a reasonable accommodation of the employer’s choosing without considering the employee’s particular situation and requested accommodation(s). Second, it reminds employers that they may not require employees to accept a reasonable accommodation when the employee did not request one. Third, the EEOC states that if an employer can only provide partial reasonable accommodations absent undue hardship, the employer will still be required to provide the reasonable accommodations up to the point it does create an undue hardship. For example, if an employer can eliminate an essential function for a few weeks but eliminating it for several months would pose an undue hardship, the employer still must eliminate it for a few weeks.

• Limited Opportunities to Request Documentation

In the proposed regulations the EEOC encourages employers and employees to communicate openly about accommodation needs under the PWFA and discourages employers from seeking reasonable documentation simply to establish a pregnancy. In particular, the EEOC proposes that an employer may only obtain a medical documentation to support a request for an accommodation if it is reasonable under the circumstances, and it reminds employers requests for documentation that violate the proposed rule could be considered unlawful coercion or retaliation.

In an attempt to limit the documentation that employers may require, the EEOC proposes defining “reasonable documentation” as that which: (1) describes or confirms the physical or mental condition; (2) confirms that it is related to, affected by, or arises out of pregnancy, childbirth or related medical conditions; and (3) confirms that a change or adjustment is needed for that reason. Medical documentation obtained must be kept confidential consistent with the confidentiality provisions of the ADA.

The NPRM proposes a blanket prohibition on seeking certification in a number of instances: (1) when the limitation and need for a reasonable accommodation is obvious; (2) when the employer already has sufficient information to support a known limitation related to pregnancy; (3) when the request is for one of the four “predictive assessment” accommodations; and (4) when the request is for a lactation accommodation.

Additionally, the EEOC proposes that employers should not be able to request or require an employee to be examined by a healthcare provider of the employer’s choosing, but it seeks comment as to whether and under what circumstances it should consider permitting such examinations.

• Prohibited Practices

The NPRM outlines the EEOC’s interpretation of five prohibited practices under the PWFA: (1) failure to provide reasonable accommodations; (2) requiring an employee or applicant to accept an accommodation; (3) denying equal employment opportunities; (4) requiring an employee to take leave when other accommodations are available; and (5) taking adverse action against a worker for seeking or using a reasonable accommodation.

Not surprisingly, the PWFA contains an anti-retaliation obligation. The EEOC’s proposed rule includes the provisions that: (1) the worker does not have to establish they have a known limitation or are qualified under the PWFA in order to bring a retaliation claim; (2) a request for a reasonable accommodation under the PWFA is protected activity; (3) the worker does not need to be actually deterred from enjoying rights under the PWFA for the claim to be actionable; (4) it may be retaliation if an employer requires medical documentation when it is not reasonable under the circumstances; and (5) if an employer is provided sufficient documentation but continues to obtain further documentation, such action constitutes retaliation.

The NPRM also sets forth a handful of examples of violations for the anti-coercion provision of the PWFA as well: (1) prohibition on coercion, intimidation, threats, harassment or interference can be based on the request for a reasonable accommodation; (2) coercion can include an employer requesting medical documentation when it is not reasonable under the circumstances; and (3) if an employer is provided sufficient documentation but an employer continues to seek further documentation, such action constitutes coercion.

What Can Employers Do Now?

Once the NPRM is published in the Federal Register, employers will be able to provide their comments electronically by accessing the Federal eRulemaking Portal at http://www.regulations.gov, where interested parties can find, review, and submit comments. Comments on the proposal are due 60 days after official publication in the Federal Register, which is scheduled to be Friday, August 11, 2023.

Employers also may want to review the proposed regulations and the examples of reasonable accommodation the EEOC developed to better understand their obligations under the PWFA and how the EEOC may be interpreting and enforcing it. Employers may want to work closely with counsel to update any pregnancy accommodation policies and related forms.