In March 2023, FOS advised our clients of the Pregnant Workers Fairness Act (PWFA), a new federal law which expands protections for pregnant and new mothers in the workplace. https://foslaw.com/employers-may-be-subject-to-new-pregnancy-and-new-mother-accommodation-requirements/
PWFA, which has officially been in effect since June 2023, requires employers with 15 or more employees to provide “reasonable accommodations” (absent undue hardship) to a qualified employee’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or a related medical condition.
PWFA aims to fill gaps in existing federal protections relating to pregnancy discrimination and workplace accommodations.
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued proposed rules to provide clarity to and implement PWFA. The proposed rules can be found here. https://www.govinfo.gov/content/pkg/FR-2023-08-11/pdf/2023-17041.pdf
The proposed rules provide guidance to employers on the EEOC’s interpretation of PWFA, including through definitions of key terms and instructive examples.
The following are highlights of the proposed rules.
The Meaning of “Qualified Employee”
Mirroring language from the Americans with Disabilities Act (ADA), PWFA defines “qualified employee” as an employee or applicant who can perform one or more essential functions of their employment position, either with or without reasonable accommodations.
PWFA expands the ADA’s definition of “qualified employee” to also include those individuals who cannot perform one or more essential functions if (1) the inability is temporary; (2) the worker could perform the essential function(s) in the near future; and (3) the essential function(s) can be reasonably accommodated by the employer.
While PWFA does not define “temporary,” and “in the near future,” the proposed rules do. The proposed rules define “temporary” as “lasting for a limited time, not permanent, and not extending beyond ‘In the near future.’” “In the near future” is defined as generally 40 weeks. However, the proposed rules explain that this does not mean essential function(s) must always be suspended for forty weeks in an accommodation, since accommodations will depend on the specific employee’s requirements, and what the employer can accommodate without undue hardship; all of which are very fact dependent.
Examples of “Reasonable Accommodations.”
PWFA closely follows the ADA’s definition of “reasonable accommodations,” which generally involves a change in the work environment or how employment activities are normally accomplished. The proposed rules provide illustrative examples of satisfactory reasonable accommodations. These include providing the employee with additional breaks absent undue hardship, the option to sit/stand on the job, scheduling changes (including part-time work and paid/unpaid leave), telework, “light” work, and adaptive/modified equipment, uniforms, and/or relevant policies.
The proposed rules provide four examples of presumptively reasonable accommodations that do not cause undue hardship to employers: (1) the employee’s carrying and drinking water during the workday; (2) the employee’s taking additional restroom breaks; (3) a sitting option for an employee who works while standing, and a standing option for one who works while sitting; and (4) providing the employee breaks to eat and drink.
These are just some of the hypothetical reasonable accommodation scenarios described in the proposed rules.
Determining Whether “Undue Hardship” Exists
Under the PWFA, “undue hardship” generally describes a significant difficulty or expense incurred by the employer. The proposed rule adds to this definition by including examples employers can consider in determining whether undue hardship exists.
The proposed rules specifically address the accommodation of an employee’s temporary inability to perform an essential job function. This, of course, is critical to employers. The proposed rules identify multiple factors to be considered when determining if an accommodation for a temporary suspension of an essential function will cause the employer undue hardship. These include consideration of: (1) the nature of the essential function, including its frequency; (2) the length of time an employee will be unable to perform the essential function(s); (3) whether other work exists for the employee to do; and (4) whether the employer has provided others in similar positions with temporary suspensions of such functions and duties.
Requiring Sufficient Documentation
Finally, the proposed rules clarify that an employer may not seek unlimited supporting documentation from a worker who seeks PWFA accommodations. The employer may only seek reasonable documentation sufficient to grant the accommodation. This includes documentation sufficient to describe or confirm a physical or mental condition; related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and showing a reason that a change or adjustment at work is needed.
Looking Ahead
Even though the proposed rules are not final, given PWFA’s effective date, employers are already potentially subject to EEOC complaints under the statute for actions occurring after June 27, 2023.
The proposed rules are subject to public comment through October 10, 2023. After that, the rules will be finalized and published in the Federal Register.
While PWFA protections are under federal law, state and local governments may have similar laws governing their jurisdictions. Contact your FOS attorney to ensure that your employment policies and procedures comply with PWFA, its proposed and final regulations, and other laws governing the workplace.
