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On August 11, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) will publish its proposed regulations on the Pregnant Workers Fairness Act (PWFA) in the Federal Register. The PWFA became effective on June 27, 2023, and its purpose is to ensure pregnant and postpartum employees can retain their jobs. It requires covered employers to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operations of the business. The proposed regulations expand upon employers’ responsibilities under the PWFA and contain interpretive guidance expounding on those responsibilities.

Interested parties, including the public, may submit comments on the proposed regulations during the sixty-day comment period that ends on October 10, 2023.

Quick Hits

  • The EEOC relied heavily on Americans with Disabilities Act (ADA) concepts with which employers are likely already familiar, including the interactive process and undue hardship.
  • Despite its reliance on the ADA, the proposed regulations—in line with the PWFA itself—depart from the ADA by deeming an employee qualified for a position, even if the employee cannot perform an essential function, so long as the employee is able to do so within the “near future,” defined as about forty weeks from the inability to perform the essential function.
  • The proposed regulations provide a long list of medical conditions related to pregnancy and childbirth that employers otherwise might not have considered.
  • The EEOC also provided numerous examples of reasonable accommodations for pregnancy-related conditions that employers likely will find helpful.

The Proposed Regulations

Reliance on ADA Concepts

Fortunately for employers, the proposed PWFA regulations rely heavily on concepts with which employers already should be familiar because of their ADA compliance efforts. So, for example, the PWFA adopts some of the ADA’s definitions, including “undue hardship,” “essential job functions,” “interactive process,” “reasonable accommodation,” and “individualized assessment.” Similarly, employers generally will be able to use their ADA interactive process procedures for pregnancy-related conditions. Employers, however, will want to ensure any employer request for supporting documentation is consistent with the regulations.

“Qualified” Employees and Temporary Suspension of Essential Job Functions

The proposed regulations adopt the ADA’s definition of a qualified individual as “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.” However, in a marked departure from ADA principles, an applicant or employee also can be qualified even if the individual cannot perform one or more essential job functions, so long as a pregnancy-related condition causes the inability to do so, the inability to perform the essential function(s) is “temporary,” the individual can perform the essential function(s) “in the near future,” and the employer can reasonably accommodate the employee’s inability to perform the essential function(s).

“In the Near Future”

The proposed regulations define “in the near future” as forty weeks from the employee not being able to perform an essential job function. Moreover, the proposed regulations do not set one overall forty-week limit for all job functions. Instead, under the proposed regulations, an employer should consider the “in the near future” forty weeks to apply to the inability to perform each function separately. For example, an employee may not be able to perform an essential function during pregnancy, which triggers a forty-week time period, and be unable to perform a different essential job function because of a post-pregnancy pregnancy-related medical condition, triggering another forty-week time period.

Pregnancy or Childbirth-Related Medical Conditions

The EEOC identifies a long list of medical conditions that it characterizes as pregnancy-related, some of which may not be immediately evident to employers. These conditions include infertility and fertility treatments, past pregnancy, endometriosis, birth control use, menstruation, miscarriage, stillbirth, having or choosing not to have an abortion, postpartum depression, lactation (and conditions related to lactation, such as low milk supply, mastitis, etc.), and post-pregnancy limitations or complications that are a consequence of pregnancy.

Reasonable Accommodations

The proposed regulations direct employers to provide interim accommodations and provide a lengthy list of accommodations that the EEOC considers reasonable. These accommodations include making existing facilities readily accessible to and usable by employees and applicants with known limitations under the PWFA, job restructuring, reassignment, leave, part-time schedules, providing reserved parking spaces for employees otherwise entitled to use employer-provided parking, allowing employees to telework on a full-time or part-time basis (including in the context of commuting issues), removing an essential function, assigning an employee to light duty, and adjusting or modifying policies.

  • “Predictable assessments.” The EEOC categorizes some accommodations as “predictable assessments” that an employer should grant in virtually all cases without requiring supporting documentation or extensive individualized assessment. These include allowing an employee to carry water and drink in the work area, allowing additional restroom breaks, allowing sitting in jobs that require standing, and standing in jobs that require sitting, and allowing breaks as needed to eat and drink. The proposed regulations note such accommodations will rarely be an undue hardship.
  • Additional lactation accommodations. The proposed regulations note accommodations for lactation related to pumping, beyond the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), such as, but not limited to, “ensuring that the area for lactation is in reasonable proximity to the employee’s usual work area; that it is regularly cleaned; that it has electricity, appropriate seating, and a surface sufficient to place a breast pump; and that it is in reasonable proximity to a sink, running water, and a refrigerator for storing milk.”
  • Cumulative effect. The proposed regulations provide that a covered employer “may not establish an undue hardship based on a mere assumption or speculation that other employees might seek a reasonable accommodation, or even the same reasonable accommodation, in the future.”
  • Supporting documentation. Under the proposed regulations, an employer is not required to seek documentation, but may if reasonable under the circumstances for the employer to determine whether to grant the accommodation. Employers may not seek supporting documentation if (a) “the limitation and the need for reasonable accommodation are obvious” and the employee self-attests; (b) when the employee/applicant has provided the employer with enough information to substantiate the known limitation and need for an accommodation; (c) if the accommodation is one of the four listed as a “predictable assessment” and the employee self-attests; or (d) if the accommodation is related to lactation or pumping and the employee/applicant self-attests. In other circumstances, documentation would be limited to “documentation that is sufficient to describe or confirm the physical or mental condition; that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and that a change or adjustment at work is needed.”

Next Steps

While the proposed regulations will not be finalized until after the sixty-day comment period closes, employers may wish to review their policies and current accommodation processes, given the PWFA itself is currently in effect. Employers may consider implementing a PWFA policy or enhancing their current accommodations policies to include specific reference to pregnancy-related accommodations. Employers also may decide to reevaluate their interactive process documentation as it relates to pregnant employees and consider preparing forms and letters specific to PWFA accommodations, ensuring documentation is only used consistent with and as allowed by the regulations.

Additionally, employers may want to review state and local pregnancy accommodation requirements, as well as make sure they are using the current EEO poster, which includes applicable PWFA provisions.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will publish updates on the Leaves of Absence blog as additional information becomes available.

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Managing leaves and reasonably accommodating employees can be complex, frustrating, and expose employers to legal peril. Employers must navigate a bewildering array of state and federal statutes, with seemingly contradictory mandates.

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