The Equal Employment Opportunity Commission (EEOC) has been hard at work for the last few months crafting its proposed regulations under the Pregnant Workers Fairness Act (PWFA). As described in our prior article, the PWFA went into effect on June 27, 2023. On August 7, 2023, the EEOC issued a 275-page Notice of Proposed Rulemaking outlining its proposed regulations for public comment. The EEOC is taking comments on the proposed regulations, which could result in some changes. We do not, however, anticipate significant changes. All covered employers should become familiar with the proposed regulations and consider whether changes will be needed to their accommodation processes if the regulations are finalized, as written.

The essential purpose of the PWFA is to protect employees, as well as applicants, who have known limitations that do not rise to the level of a “disability” under the ADA but require a reasonable accommodation. The EEOC defines a “known limitation” as a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, including any needs or problems related to maintaining an employee’s/applicant’s health or the health of their pregnancy.

Generally, the proposed regulations track with the accommodation processes and requirements of the ADA. The EEOC walks through the need for an interactive process that will allow both the employee and employer to determine if reasonable accommodations exist. Often, employers ask employees for documentation from a health care provider of a medical condition and the need for an accommodation. The proposed regulations note specific situations when an employer is restricted from asking for such documentation, including when the known limitation and need for reasonable accommodation are “obvious,” and the employee confirms the obvious limitation and need for reasonable accommodation through self-attestation. Examples of this type of obvious limitation include the need for larger uniforms as a pregnancy progresses, or the needs listed below. If the request for documentation is unreasonable, an employer cannot deny or delay a reasonable accommodation based on a lack of supporting documentation. 

As for the range of accommodations that may be reasonable, the EEOC’s expansive and detailed proposed regulations specifically mention four accommodation requests that are deemed reasonable on their face and do not impose an undue hardship on employers, absent unusual circumstances: (1) allowing an employee/applicant to carry and drink water as needed throughout the workday; (2) giving an employee/applicant additional restroom breaks; (3) allowing an employee/applicant to sit as necessary; and (4) giving an employee/applicant breaks as needed to eat and drink. We do not anticipate significant challenges to this list, although there may be circumstances when the role cannot be performed while sitting, for example.

Other items of note in the proposed regulations include the following:

• According to the EEOC, employers should consider whether they can eliminate one or more essential functions of the job for up to 40 weeks during an employee’s pregnancy and for a period after the pregnancy is over and the employee returns from leave (note that the proposed regulations do not require the elimination of essential functions, but suggest that employers should consider whether they can reasonably do so due to the temporary nature of pregnancy);
• An unnecessary delay in responding to a reasonable accommodation request may result in a violation of the PWFA;
• Similar to a request for an accommodation under the ADA, a request for an accommodation under the PWFA does not have to be in writing or use any specific words or phrases, but employees must (1) identify the limitation and (2) indicate they need adjustment or change; and
• Employers are prohibited from requiring an employee to take leave when other reasonable accommodations are available and, similar to the ADA, are prohibited from taking any adverse actions against employees for seeking or using a reasonable accommodation.

Employers should familiarize themselves with these proposed regulations and consult with counsel prior to the end of the comment period on October 10, 2023. Those who wish to review and submit comments should visit the Federal eRulemaking Portal site located here. We strongly encourage employers to update their accommodation policies in accordance with the PWFA, taking into consideration these anticipated regulations. 

If you have questions about these changes or need any assistance modifying your policies and forms, please contact Masallay Komrabai-Kanu and any other attorney in our Workplace Solutions Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.