by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Lana L. Rupprecht, Esq. - Director, Product Compliance
August 23, 2023
On August 11, 2023 The Equal Employment Opportunity Commission (EEOC) published proposed regulations and related materials in support of the Pregnant Workers Fairness Act (PWFA).
These materials are very comprehensive – as we mentioned in our previous alert, they are 275 pages long. For those of you who like to read (it is after all, August, the month for back to school and learning), here is a link to the proposed regulations:
Here and in follow up blogs, we will address key issues associated with the PWFA and the proposed regulations. As the name implies, these are draft regulations only. More about this is described below.
Wait! What is the PWFA again?
The PWFA is a federal law that was part of the Consolidated Appropriations Act passed in December of 2022.
The PWFA, effective since June 27, requires employers with 15 or more employees to provide reasonable accommodations to qualified employees or applicants (for this blog we will refer to qualified employees for short) with a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions UNLESS doing so will result in an undue hardship. Make note of our colored text here – those terms are all used in the PWFA and much of the news-worthy content of the proposed regulations is in the very important definitions section.
Check out our prior blog posts on the PWFA linked here:
I thought the PWFA was already effective. Why are there proposed regulations?
The PWFA is a new federal statute effective since June 27, 2023.
After passage of a statute like the PWFA, the appropriate administrative agency (in this case, the EEOC) drafts regulations that provide direction on how the law will be applied and enforced.
Since these regulations are just proposed, do we expect them to change?
Possibly. The EEOC will accept public comments to the proposed regulations for 60 days, through October 10. The Commission then has until December 29, 2023, to publish the final regulations (one year after passage of the law).
Nothing in the proposed regulations is cast in stone, and there may be modifications before December 29. However, our sources and the general opinion in the industry indicate that there are unlikely to be any substantial changes.
Do not worry if there are changes. Reliance Matrix is on top of this and will update you once we have the final regulations.
What topics are addressed by the proposed regulations?
Well, that's why we're here. The answer is, a lot of topics are covered by the proposed regulations, including those definitions of key terms contained in the statute, explanatory material as to why the EEOC arrived at its interpretations of the PWFA, many, many examples of related medical conditions and possible reasonable accommodations, and so on.
Give me a sneak peak! What are the most important things I need to know NOW?
OK here you go – but read on and stay tuned for more details and possible changes if the proposed regulations are modified.
- All the regulations and interpretations are broad and generally favor the pregnant worker so don't mess with your pregnant workers! For example, the definitions of known limitations that must be accommodated and related medical conditions to pregnancy and childbirth are both quite sweeping in coverage.
- Employees may make a request for a pregnancy-related accommodation to any employer representative and in any format. So it's going to be extremely important to ensure that all levels of supervisors know about the new law and are trained to enlist help from the company's appropriate department when an accommodation request comes their way.
- The draft regulations "encourage" employers to grant accommodations quickly – after all, pregnancy is a temporary condition so immediate accommodation is favored. Provide an accommodation as a temporary measure if you need medical documentation to support the request longer term.
- Be cautious in your requests for medical documentation. Some accommodations should need no documentation at all in most cases, and what you can ask for is quite limited.
- Unlike the Americans with Disabilities Act (ADA), you might have to suspend temporarily the employee's performance of an essential function(s) if the employee will be able to perform the function in the near future and the suspension does not cause undue hardship (more of those defined terms!).
- And, the PWFA and the proposed regs read like an automatic job-protected leave law for post-delivery recovery (typical is 6 weeks for a vaginal delivery and 8 weeks for a C-section).
Since the language in the PWFA is very similar to the ADA, can employers just analyze PWFA accommodation requests in a similar fashion?
Maybe in some cases, but be careful! It is true that the the PWFA statute is based on some of the same language and definitions contained in the ADA. However, the EEOC appears to be trying to fill in some gaps with the proposed regulations previously left by the ADA. For example, there's more specificity in the PWFA regulations about a leave of absence as a reasonable accommodation and job protection following leave. Also, there's direct urging to provide a quick turnaround on an accommodation request, or a temporary accommodation immediately if a quick final response isn't feasible. Is the EEOC just trying to do a more thorough job on these regs and avoid so much litigation? Or are they trying to push toward applying these same more specific principles to the ADA? This will be interesting to watch!
How is known limitation defined in the proposed regulations?
An employee's known limitation invokes the protections of the PWFA, and it's a very low threshold. The PWFA is intended to cover uncomplicated pregnancies not covered under the ADA. According to the proposed rule, a known limitation is a condition that has been communicated to the employer that is "related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions..."
The limitation does not need to meet the definition of disability as defined by the ADA. According to the proposed regulations, the limitation may be a "modest, minor and/or episodic impediment or problem." It may include health care sought in relation to pregnancy, childbirth, or a related medical condition.
Does the EEOC provide examples of reasonable accommodation under the PWFA in the proposed regulations?
Yes. The proposed rules provide specific examples of possible reasonable accommodations under the PWFA, including:
- Frequent breaks;
- Schedule changes, part-time work, paid, and unpaid leave;
- Light duty;
- Making existing facilities accessible or modifying the work environment;
- Job restructuring;
- Temporarily suspending one or more essential functions;
- Acquiring or modifying equipment, uniforms, or devices; and
- Adjusting or modifying examinations or policies
Also, the proposed regulations identify four types of PWFA accommodations called "predictable assessments" that "in virtually all cases," should be considered reasonable, will not impose an undue hardship, and should not require medical documentation:
- Allowing an employee to carry water and drink as needed;
- Permitting additional restroom breaks;
- Permitting an employee who typically stands to sit or who typically sits to stand; and
- Eat and drink breaks.
Are employers required to accommodate an employee under the PWFA if the employee is unable to temporarily perform certain essential job functions?
Yes, unless doing so constitutes an undue hardship. Unlike the ADA, an employee who cannot perform one or more essential job functions may still be considered a qualified employee under the PWFA.
The PWFA provides two definitions of qualified employee.
- The first definition is like the ADA's definition of a qualified employee, and requires that the employee be able to perform the essential functions of the employment position with or without an accommodation.
- But the second definition permits an employee to be deemed "qualified" even if they are unable to perform an essential job function if:
it is for a temporary period;
the job function will be performed in the near future; and
the inability to perform the essential functions can be reasonably accommodated.
Under the proposed rule, "in the near future" means, within 40 weeks from the start of the temporary suspension of an essential function. And, according to the EEOC, "in the near future" could be applied during pregnancy and then, the 40 weeks could restart again with every request to suspend an essential function after the employee has the baby and returns to work.
This time period is based initially on the duration of a typical full-term pregnancy. The EEOC has carried it over to the need for a post-delivery suspension of essential functions based on the recognition that severe health conditions in the first year after childbirth are common. We suspect (although the EEOC doesn't say this) that the EEOC hopes using "generally 40 weeks" in every situation will lend consistency to employer's understanding and application of the law. And before you start counting leave time, remember that the employee is entitled to the suspension of an essential function only for the time medically supported – it's not an automatic 40 weeks every time.
A little side note here: Industry intelligence indicates that these two provisions – temporary suspension of an essential function, and especially the 40-week post-delivery definition of "in the near future" – will receive the most outcry during the public comment period. Maybe there will be a little give by the EEOC? Or maybe not.
Where can I find more information from the EEOC about the PWFA and the proposed regulations?
The EEOC has an excellent summary of the proposed regulations linked below:
Also, here is a press release from the EEOC on the proposed regulations:
Additionally, the EEOC previously released the following resources and guidance on the PFWA which are linked below:
Can employers submit comments?
Yes. As mentioned above, members of the public have 60 days from August 11 to comment on this proposed rule and may do so here: www.regulations.gov.
The public may submit comments on that page by clicking on the green "Submit a Formal Comment" button until Oct. 10, 2023
Reliance Matrix Can Help!
Reliance Matrix offers employers federal and state leave administration and accommodation services, including pregnancy accommodations under the PWFA, and as applicable, corresponding state laws. For more information, contact your Reliance Matrix account manager or send us a message to [email protected].