Employers finally have some guidance regarding the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023. On August 11, 2023, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking to implement the law. The proposed rule will now enter a 60-day comment period, during which interested parties can submit feedback to the EEOC regarding the rule. The EEOC will take the comments into consideration when finalizing the rule, and we should expect a final rule to be in place in December 2023.
As a refresher on the PWFA, it is modeled after the Americans with Disabilities Act (ADA) and requires employers to make reasonable accommodations based on known limitations related to pregnancy, childbirth, or related medical conditions. Employers are not required to grant an accommodation request if it imposes an undue hardship. The terms “reasonable accommodation” and “undue hardship” have the same meaning as under the ADA. Additionally, employers should follow the interactive process after receiving a request for an accommodation, just like under the ADA.
The full text of the EEOC’s proposed rule is available here. However, answers to your most important questions are outlined below.
- What is a “known limitation?”
A limitation is known to the employer if the employee or her representative has communicated it to the employer.
A limitation is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. One major difference between the PWFA and the ADA, is that a limitation does not need to rise to the level of a disability to trigger an employer’s duty to accommodate. A limitation can be a “modest, minor, and/or episodic impediment or problem.”
- What are “related medical conditions?”
The proposed rule lists several potential issues that could be considered “related medical conditions,” including, for example: 1) termination of pregnancy (miscarriage, stillbirth, or abortion); 2) infertility/fertility treatments; 3) anxiety, depression, psychosis, or postpartum depression; 4) menstrual cycles; 5) use of birth control; 6) and lactation. This is not an all-encompassing list, and the proposed rule lists out additional “related medical conditions.”
- Can I request medical documentation from an employee who requests an accommodation during the interactive process?
The EEOC suggests that the need for documentation should not be common because most accommodation requests will be “simple and straightforward.” In the event that an employer has “reasonable concerns” about whether the employee has a limitation, whether the employee’s limitation is caused by pregnancy, childbirth, or a related medical condition, and/or whether the accommodation is necessary, it may request medical documentation. In short, requesting medical documentation should be the exception, not the rule.
- What is a reasonable accommodation under the PWFA?
The EEOC presumes that the following accommodations are reasonable: 1) allowing an employee to carry and drink water during the workday; 2) allowing an employee additional restroom breaks; 3) allowing an employee breaks to eat and drink; and 4) allowing an employee to sit or stand when necessary. The EEOC states that these accommodations will not cause undue hardship in virtually all cases.
Additional examples provided by the EEOC of possible accommodations are: 1) light-duty assignments; 2) providing an employee with different equipment, uniforms, or devices; 3) closer parking; 4) schedule changes/flexible hours; 5) temporarily suspending one or more essential functions; and 6) teleworking. A leave of absence (paid or unpaid) is also a reasonable accommodation, but it should only be offered as an accommodation if there is no other reasonable accommodation available.
- What if an employee is unable to perform the essential functions of her job due to pregnancy, childbirth, or a related medical condition?
In the second major difference from the ADA, the EEOC suggests that temporarily excusing an employee from an essential function of the job is a reasonable accommodation, unless it would impose an undue hardship. Employers only need to excuse an employee from an essential function if the employee’s inability to perform the duty is 1) temporary, 2) the essential function can be performed “in the near future,” and 3) the inability to perform the essential function cannot otherwise be reasonably accommodated. The EEOC defines the phrase “in the near future” to generally mean 40 weeks.
The EEOC began accepting charges based upon the PWFA on June 27, 2023. Therefore, although the EEOC’s rule has not yet been finalized, employers should begin implementing policies and procedures in line with the proposal now. As the EEOC noted, voluntary compliance with the proposed rule and communication between employer and employee are key to the success of PWFA. We will continue to monitor the status of the proposed rule, and employers should keep a look out for updates on the final rule in December 2023.