As announced, the U.S. Equal Employment Opportunity Commission (EEOC) published its long-awaited proposed regulations implementing the Pregnant Workers Fairness Act (PWFA) on Friday, August 11, 2023. Public comment will be accepted through October 10, 2023, via the following options:

• Federal eRulemaking Portal
• Fax: 202-663-4114
• Mail/Hand Delivery/Courrier: Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507

Notable Definitions
As expected, the proposed rules provide definitions clarifying certain terms in the PWFA that may not initially have been clear from the statute.

“Known limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or applicant or their representative communicated to the employer.

“Limitation” is clarified to include an impediment or problem that may be modest, minor, and/or episodic and can include a need or problem related to maintaining the health of the individual or of the pregnancy, as well as when the worker is seeking related healthcare. The proposed rules clarify there is no level of severity required, and the limitation does not need to meet the definition of “disability” under the Americans with Disabilities Act (ADA).

“Pregnancy” includes, but is not limited to, current, past, potential, or intended pregnancy.

“Related medical conditions” include, but are not limited to:

Communication Requirements
A worker is considered to have “communicated to the employer” if they have requested an accommodation by communicating that they have a limitation and need an adjustment or change at work:

• With a supervisor, manager, or someone with supervisory authority for the worker;
• With HR personnel; or
• By following the employer’s policy to request an accommodation.

Employers should note that any of the above channels will be sufficient and that they cannot require workers to submit a request in writing or to use any specific words or phrases.
 
Qualified Employee & Essential Functions
The PWFA differs from the ADA in that it states a worker may be “qualified” even if they are temporarily unable to perform one or more essential functions. In this context,

• “Temporary” means lasting for a limited time, not permanent, and may extend beyond “in the near future,” and
• “In the near future” generally means within 40 weeks.

If the employee is requesting leave, the relevant inquiry is whether the employee will likely be able to perform their essential functions upon their return to work.

Presumptively Reasonable Modifications
The proposed rules also list four modifications which would virtually always be considered reasonable accommodations that would not impose an undue hardship:

1. Allowing the worker to carry water and drink it as needed;
2. Allowing the worker additional restroom breaks;
3. Allowing the worker to sit/stand despite the usual requirements of the job; and
4. Allowing the worker breaks as needed to eat and drink.

Employers are reminded that requested modifications should still be evaluated on a case-by-case basis. These four modifications are intended to help simplify the interactive process.

Documentation
Under the proposed rules, an employer may only require documentation “that is reasonable under the circumstances” and is prohibited from requiring documentation:

• When the known limitation and need for reasonable accommodation are obvious and are attested to by the worker;
• When the worker has already provided sufficient documentation to substantiate that they have a known limitation and need for a change or adjustment at work;
• When the worker has attested to being pregnant, and the requested accommodation is one of the four presumptively reasonable ones listed above; and
• When the documentation is regarding lactation or pumping.

Otherwise, when there is a reasonable circumstance, employers’ requirement for documentation is limited to documentation that describes or confirms 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. The same confidentiality rules under the ADA apply to any medical information received by an employer for PWFA purposes.

Interim Reasonable Accommodations
The proposed rules also remind employers that providing an interim reasonable accommodation is a best practice under the PWFA. Due to the often temporary nature of workers’ needs for accommodations under the PWFA, employers should consider providing an interim reasonable accommodation while engaging in the interactive process.

Final Takeaway (for now)
Since this is a new law with ongoing developments, employers should carefully review the proposed rules and consider submitting comments if they have any questions or concerns. Additionally, employers should ensure their first-line supervisors are trained to recognize a potential request for accommodation under the PWFA, as workers are often likely to discuss pregnancy-related limitations and needs for modifications in the workplace with their direct supervisors.

The proposed rules do not yet have the weight of law but may give some indication of how the EEOC will approach charges filed by employees for alleged violations of the PWFA until the final rules are published. As a reminder, the PWFA requires the EEOC to publish its final rules by late December this year, one year from when the PWFA was signed into law. HEC will continue to monitor the status of these rules and provide updates as they become available.