Pointers for Employers on the Proposed Regulations Interpreting the PWFA

Prior to the enactment of the PWFA, employees and applicants for employment had to rely on the Americans with Disabilities Act (ADA) for pregnancy-related conditions that arose to the level of a "disability." The PWFA broadens such protections by allowing workers with even "uncomplicated pregnancies" to seek accommodations, in recognition of the fact that any pregnancy (or related medical condition) may create limitations. Even modest, minor and/or episodic conditions related to the below may qualify for reasonable accommodation under the PWFA:

• Current, past and potential pregnancy;
• Menstruation;
• Infertility and fertility treatments;
• Miscarriage;
• Use of birth control; and
• Having, or choosing not to have, an abortion.

The proposed rule opened for comment on Friday, August 11, and remains open for 60 days thereafter. The Equal Employment Opportunity Commission (EEOC) must implement final regulations by December 29, 2023.

Who Is a "Qualified" Employee?
The most salient departure from current law is the definition of "qualified" in terms of entitlement to a reasonable accommodation. 

Under the ADA, when determining if an employee or applicant is "qualified," the relevant question is whether the individual would be able to perform the essential functions of the position, with or without reasonable accommodation. If the individual is unable to perform the essential functions even with a reasonable accommodation, the employer is not required to accommodate that individual.

The proposed regulations deviate from this aspect of the definition of "qualified." Under the PWFA, an employee or applicant may be considered "qualified" even if the employee cannot perform one or more essential functions of their position—as long as the inability to perform the essential function(s) is "temporary." The proposed regulations define "temporary" as "lasting for a limited time" or extending beyond "the near future," which is further defined to mean as much as 40 weeks from the start of the temporary suspension of an essential function.

The EEOC has clarified that the proposed definition of "temporary" does not mean that an employee's essential function must always be suspended or modified for the full 40 weeks. The length of the suspension/modification will ultimately depend upon what the employee requires and whether a temporary suspension or modification of duties would create an undue hardship for the employer. However, the mere fact that the temporary suspension of one or more essential functions is needed for any time period up to and including 40 weeks will not, on its own, render a worker not "qualified" under the PWFA.

Limitations on Employer's Request for Documentation
Under the proposed regulations, if an employer has "reasonable concerns" about whether the limitation is "related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions," the employer may request information, consistent with the interactive process outlined under the ADA. The EEOC, however, anticipates that the determination of whether a limitation is related to, affected by or arising out of pregnancy, childbirth or related conditions, "will be a straightforward determination" that will not require the employee to obtain documentation or verification.

The proposed regulations offer many examples of when it is not reasonable for an employer to require documentation: 1) if the limitation and need for reasonable accommodation are obvious; 2) when the employee or applicant has already provided sufficient information to substantiate that the worker has a limitation and needs an accommodation; 3) when the worker is pregnant and requests to carry and drink water as needed, take additional restroom or meal breaks, or sit or stand as needed; and 4) when the request for accommodation involves lactation.

"Reasonable Accommodation" Definition and Examples
The definition of "reasonable accommodation" in the PWFA is nearly identical to that of the ADA, including modifications or adjustments to a job application process, work environment, or that otherwise enable a qualified employee or applicant to enjoy equal benefits and privileges of employment. The proposed regulations deviate from the ADA by further providing that a reasonable accommodation may also include the temporary suspension of one or more essential functions of the employee's position.

The proposed regulations offer several examples of what might constitute a "reasonable accommodation," many of which are similar to those provided under the ADA. Examples include more frequent breaks, carrying and drinking water as needed, sitting or standing as needed, acquiring or modifying equipment, uniforms, or devices, and making existing facilities accessible or otherwise modifying the work environment.

Understanding the Impact
For many employers, reasonably accommodating employees affected by pregnancy or a related condition is already required by state or local law. The proposed regulations will now ensure a federal level of protection for such employees, as it applies to all employers with 15 or more employees. Employers in the following states, which the PWFA has identified as not already having protections for pregnant employees, are likely to feel the greatest impact of this new legislation: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, New Hampshire, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Wisconsin and Wyoming.

All employers should take note of the PWFA and the proposed regulation—but employers in the states listed above are more likely to require changes to policies and practices.