The EEOC Issues a Proposed Rule Regarding the Pregnant Workers' Fairness Act

On August 11, 2023, the U.S. Equal Employment Opportunity Commission ("EEOC") issued a Notice of Proposed Rulemaking ("NPRM") to implement the Pregnant Workers Fairness Act ("PWFA").  PWFA went into effect on June 27, 2023, and it guarantees reasonable accommodations for pregnant workers—mirroring the protections for disabled workers under the Americans with Disabilities Act ("ADA").

The EEOC's NPRM was published on August 11, 2023.  The NPRM addresses each element of the PWFA requirement—providing definitions when necessary, clarifications, and examples of reasonable accommodations.  The NPRM can be found here.  The EEOC invites any interested member of the public to comment on the NPRM.  The comment period will end on October 10, 2023.  Members of the public can submit comments from the page linked above by clicking the green "Submit a Formal Comment" button.

Overview and Essential Terms

The PWFA requires a covered employer to provide reasonable accommodations, absent undue hardship, to a qualified employee or applicant with a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.  

NPRM clarifies that a "limitation" does not require a specific level of severity.  Instead, a "limitation" can be modest, minor, and/or episodic.  While some "related medical conditions" may appear obvious, the proposed rule provides examples of such conditions, including current, past, and potential pregnancy, menstruation, birth control, infertility and fertility treatments, miscarriage, or having or choosing not to have an abortion.

Finally, NPRM does not require an individual to use "magic words" when requesting an accommodation.  Requests can be made in conversation or through another mode of communication so long as it places the employer on notice.  For instance, an employee informing an employer that they are having trouble getting to work due to morning sickness is a sufficient request under PWFA. 

NPRM's Meaning of "Qualified"

PWFA considers an individual to be "qualified" even if they are unable to perform one or more essential functions of the job if the inability is (1) "temporary"; (2) the individual could perform the essential function(s) in the "near future"; or (3) the inability to perform the essential function(s) can be "reasonably accommodated."

The proposed rule defines the term "temporary" as "lasting for a limited time, not permanent, and may extend beyond 'in the near future.'"  The NPRM proposes to define "in the near future" to mean generally forty weeks from the start of the temporary suspension of an essential function.  The forty-week period is based on the time of a full-term pregnancy. 

Finally, the NPRM proposes to define the term "reasonably accommodated" to mean:

1. One or more of the essential functions are temporarily suspended, with or without reassignment to someone else, and the employee continues to perform the remaining functions;
2. One or more of the essential functions are temporarily suspended, with or without reassignment to someone else, and the employee may be assigned other tasks to replace them; or
3. One or more of the essential functions are temporarily suspended, with or without reassignment to someone else, and the employee may perform the functions of a different job to which the employer temporarily transfers or assigns them, or the employee may participate in the employer’s light or modified duty program.

Examples of a "Reasonable Accommodation"

The NPRM provides examples of reasonable accommodations under the PWFA.  The examples demonstrate the wide range of possible accommodations. A few examples are as follows: 

• Providing frequent breaks;
• If available, providing reserved parking spaces;
• Modifying uniforms, equipment, or devices, including devices that assist with lifting or carrying for jobs that involve lifting and/or carrying;
• Providing light duty work;
• Remote work; and
• Job restructuring, such as temporarily suspending one or more essential functions or adjusting or modifying examinations or policies. 

However, the following four job modifications/accommodations will be found reasonable, and not impose an undue hardship, in virtually all cases: (1) carrying water and drinking water as needed; (2) allowing additional restroom breaks; (3) allowing sitting for those whose work requires standing and standing for those whose work requires sitting; and (4) allowing breaks as needed to eat and drink. 

Conclusion

The NPRM provides insight into how the EEOC will interpret the PWFA and its specific terms.  Employers should review their policies and procedures—keeping in mind the NPRM.  Ward and Smith's labor and employment attorneys will continue to monitor and analyze the substance of the NPRM and its potential impact on employers and can advise on how to successfully navigate accommodation requests.

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