Proposed PWFA regulations provide employers with more details on new law

Posted August 11, 2023

On August 11, just six weeks since the new law became effective, the Equal Employment Opportunity Commission (EEOC) will publish its proposed regulations on the new Pregnant Workers Fairness Act (PWFA). While not finalized, the proposed rules show how the EEOC expects employers to comply.

EEOC says communication is key

In the preamble to the regulations, the EEOC points out that communication between employees and employers is the key to compliance.

While employees (and applicants) are responsible for asking for workplace accommodations, they are NOT required to:

• Mention the PWFA,
• Say any specific phrases, or
• Use medical terms.

Rather, employees can tell employers that they have a limitation related to pregnancy, childbirth, or related medical conditions and need an adjustment or work change.

Employers may not require that this communication be in writing, in any specific format, or on any particular form. Employees can convey the need for accommodations to anyone in a supervisory role.

Employers should, therefore, train all first-line supervisors how to recognize these requests for accommodations and respond appropriately.

Responding to request

To help avoid litigation, employers should put forth a good faith effort during the interactive process (i.e., discussion) with employees to quickly find accommodations that work.

If, for example, an employee’s need is straightforward and an employer can easily accommodate it (e.g., providing a stool for a pregnant cashier), the employer should provide the accommodation.

If employers have questions or want to explore different options, however, they should talk with employees about their needs and accommodation ideas.

For more complex situations, employers may need to analyze a job’s essential functions and request reasonable medical documentation.

Employers may not, however, request reasonable medical information when the:

• Limitation and need for accommodation are obvious and employees confirm themselves;
• Employee has already provided sufficient information to support a known limitation and the employee needs a change or adjustment at work;
• Employee is pregnant and the reasonable accommodation is simple; or
• Employer requires documentation (other than self-attestation) from the employee regarding lactation or pumping.

Limitations

The PWFA does not have a threshold of how severe an employee’s condition must be. It could be modest, minor, and/or episodic.

The proposed rule defines the term “temporary” as lasting for a limited time, not permanent, and may extend beyond “in the near future.” The rule defines “In the near future” as within 40 weeks — the duration of pregnancy.

Pregnancy and childbirth include:

• Current pregnancy,
• Past pregnancy,
• Potential or intended pregnancy,
• Labor, and
• Childbirth.

Related medical conditions could include situations like:

• Miscarriage,
• Abortion,
• Infertility (fertility treatment),
• Nausea or vomiting,
• Varicose veins,
• Menstrual cycles,
• Use of birth control, and
• Conditions related to lactation.

Employers must remember that employees do not have to specify a condition or use medical terms to describe it to be eligible for a reasonable accommodation.

Reasonable accommodations

The proposed regulations provide a lengthy list of potential reasonable accommodations. This list includes the following:

• Job restructuring;
• Part-time or modified work schedules;
• Breaks for use of the restroom, drinking, eating, and/or resting;
• Providing seating for jobs that require standing, or standing for jobs that require sitting;
• Permitting the use of paid leave;
• Light or modified duty work;
• Telework;
• Temporarily suspending one or more essential functions of the position;
• Providing reserved parking spaces;

Employers may deny any requested accommodation that would difficult or expensive for the business as defined under the Americans with Disabilities Act (ADA).

Comments welcome

The rule is only at the proposed stage. Anyone interested has 60 days to provide comments. After that, the EEOC must review all comments before producing a final rule.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.