President Joe Biden signed the Pregnant Workers Fairness Act (PWFA) into law at the end of 2022. The law requires employers with fifteen or more employees to provide reasonable accommodations to qualified workers or applicants with known limitations related to pregnancy, childbirth, or related medical conditions. The provisions in the law build and expand upon Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA).
On August 11, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published its proposed regulations in the Federal Register, allowing for a 60-day public comment period. The regulations are designed to interpret the new law and provide examples to employers as a means of assistance in implementing the law.
Expansion of Coverage for Pregnancy and Childbirth-Related Medical Conditions
Under PWFA, employers must provide reasonable accommodations for employees’ “known limitations” concerning pregnancy, childbirth, and related medical conditions. These “known limitations” need not rise to the level of disability as required under the ADA, and there is no required level of severity; the limitation can be minor and episodic, so long as it relates to the worker’s health or the health of their pregnancy. Furthermore, the worker is not required to provide documentation or verification from a doctor; a conversation between the employee and employer is sufficient to justify the need for a reasonable accommodation of the “known limitation.”
The term “pregnancy,” as used in PWFA, relates not only to a current pregnancy but also to past, potential, or future pregnancies. The regulations also broadly define “related medical conditions,” giving examples such as menstrual periods, birth control, infertility treatments, anxiety, depression, and lactation.
Coverage for Qualified Employees Who Can and Cannot Perform an Essential Job Function
Just as under the ADA, the PWFA covers qualified employees who can perform the essential functions of their jobs, whether with or without reasonable accommodation. However, PWFA also covers qualified employees who cannot perform one or more essential job functions if:
- The inability to perform the essential job function for a “temporary period;”
- The essential job function can be resumed “in the near future;” and
- The inability to perform the job function can be reasonably accommodated.
The EEOC further defines “in the near future” as 40 weeks but recognizes that the 40-week period necessary for a reasonable accommodation may restart at some point, therefore lasting for more than 40 weeks. For instance, a pregnant employee may need one accommodation for up to 40 weeks and one during the post-partum period, which may last up to another 40 weeks.
Presumptive Reasonable Accommodations
The differences between the regulations for reasonable accommodations under the ADA and the PWFA are substantial. For example, under the ADA, temporarily suspending the performance of an essential job function is not reasonable. In contrast, under the PWFA, it is, particularly if it can go temporarily unperformed or be completed by another worker.
The regulations list four accommodations that the EEOC considers to be per se reasonable, thus not constituting an undue hardship to the employer. These accommodations include carrying and drinking water in the employee’s work area, taking additional restroom breaks, alternating between sitting and standing and taking breaks to eat and drink.
The PWFA regulations would also prohibit employers from requiring employees to take paid or unpaid leave if they can provide reasonable accommodations that would allow them to continue to work. Employers also may not unreasonably delay responding to requests for reasonable accommodations.
Employers may not require that an employee submit to an exam by a doctor of their choice to determine the need for a reasonable accommodation. The most employers can require from an employee requesting a reasonable accommodation is reasonable documentation verifying the physical or mental condition arising from pregnancy, childbirth, or a related medical condition and the need for a change or adjustment at work.
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