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Helena I. Poch Ciechanowski Patricia Tsipras
August 24, 2023
UPDATE: On February 27, 2024, a federal district court in Texas ruled that Congress violated the Constitution when it passed the Pregnant Workers Fairness Act (PWFA) because it lacked the required quorum. Specifically, Congress allowed some lawmakers to vote on the legislation by proxy, rather than in person. Texas also successfully demonstrated that the PWFA would inflict financial injury on Texas in the form of increased costs associated with updating training policies, responding to new lawsuits, and providing accommodations. The U.S. Equal Employment Opportunity Commission (EEOC) is barred from enforcing the law against the state of Texas.
As previously reported, the Pregnant Workers Fairness Act (“PWFA” or “Act”) became effective on June 27, 2023 and requires covered employers to provide reasonable accommodations to qualified employees and applicants with known limitations arising from pregnancy, child birth, or related medical conditions. See our June 20, 2023 article on the PWFA for more information on the provisions of the Act. Now, in connection with its charge to administer and enforce civil rights laws prohibiting workplace discrimination, the U.S. Equal Employment Opportunity Commission (“EEOC”) has published its proposed regulations to implement the PWFA, which will be available for public comment in a Notice of Proposed Rulemaking (“NPRM”) (RIN number 3046-AB30) through October 10, 2023.
Key Provisions from the Proposed Regulations
The EEOC’s proposed regulations expound on important topics related to the PWFA, including setting forth coverage, remedies, and enforcement of the Act, defining key terms such as “known limitations” and “qualified employee or applicant,” and providing examples of both reasonable accommodations and various conditions that fall within the scope of “pregnancy-related conditions” covered under the PWFA. Below are some of the key topics of which employers should be aware.
Definition of “Known Limitation”
The PWFA protects employees and applicants with “known limitations.” The proposed regulations explain what constitutes a “known limitation” by breaking down each of the operative terms in the phrase. Specifically, “known” means that the employee’s limitation has been communicated to the employer. “Limitation” refers to a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. A “physical or mental condition” may be modest, minor, and/or episodic.
This definition highlights two key takeaways from the proposed regulations. First, the onus appears to be on the employee to disclose their limitations. Accordingly, as written, employers may not be obligated to speculate, assume, or even reasonably anticipate the existence of a limitation associated with pregnancy, childbirth, or related medical condition. Second, notably absent from the definition of “limitation” are any references to a minimum threshold for the severity of a condition that will trigger the employer’s obligation to provide a reasonable accommodation. Thus, as intended, the PWFA may cover workers whose condition does not meet the definition of disability under the Americans with Disabilities Act.
Definition of “Qualified”
The NPRM for the proposed regulations outline the two ways in which the PWFA uses the term “qualified.” First, a “qualified employee or applicant” under the PWFA is the same as a “qualified employee or applicant” under the Americans with Disabilities Act – i.e., “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.” Second, the PWFA uses the term “qualified” to refer to an employee or applicant who cannot perform the essential functions of the job provided that: (1) the inability to perform essential job functions is “temporary” (lasting for a limited time, not permanent); (2) the essential functions may be able to be performed “in the near future” (generally within 40 weeks); and (3) the inability to perform the essential functions can be reasonably accommodated without posing an undue hardship to the employer.
Conditions Covered Under the Act
The NPRM contains a broad scope of conditions that could be covered under the Act, including, but not limited to, “current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.”
Reasonable Accommodations
The NPRM reminds employees that it is their responsibility to request an accommodation for known limitations arising out of pregnancy or a related condition. Accordingly, an employer is required to provide an accommodation only after an employee has communicated their limitation that warrants an accommodation.
The NPRM further provides examples of reasonable accommodations that an employee could seek under the PWFA. These accommodations include, but are not limited to: frequent breaks, sitting/standing, modified work schedules, paid/unpaid leave, remote work, reserved parking, light duty, modification to the work environment, job restructuring, temporary suspension of essential job functions, modifying equipment, uniforms, or devices, and/or modifying examinations or policies.
As it pertains to medical documentation to support accommodations, an employer may require documents only when it is reasonable to do so. The NPRM notes that is not reasonable for an employer to require medical documentation when “both the limitation and the need for reasonable accommodation are obvious.” It also is unreasonable for an employer to require documentation when an employee or applicant already has provided sufficient information to substantiate that the worker has a limitation and needs an accommodation. Moreover, it is unreasonable for an employer to require documentation when a worker seeks the following accommodations: “(1) carrying water and drinking, as needed; (2) taking additional restroom breaks; (3) sitting, for those whose work requires standing, and standing, for those whose work requires sitting; and (4) breaks, as needed, to eat and drink.”
Employer Takeaways
Although the EEOC’s proposed regulations regarding the PWFA are not yet set in stone, employers should consider them as they review and update their accommodation policies and practices because the proposals provide some insight into the EEOC’s interpretation of the PWFA and its applicability in the workplace.
Keep in mind that the PWFA requires the EEOC to issue final regulations to implement the Act by December 29, 2023. If you are interested in commenting on the proposed regulations, you may do so until the comment period ends on October 10, 2023 at www.regulations.gov.
Rubin Fortunato is a full-service employment law firm located in Suburban Philadelphia. Our skilled employment lawyers are available to assist with any questions regarding the PWFA and the proposed EEOC regulations, and to help navigate the potential impact to your business and your employees.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
