EEOC proposes PWFA regs: 3 key takeaways for HR

On Monday, the EEOC unveiled proposed regulations for the Pregnant Workers Fairness Act (PWFA), the pregnancy discrimination law that took effect on June 27.

The agency will officially publish the proposed regs in the Federal Register on Friday. Anyone wishing to submit comments can do so through the Federal eRulemaking Portal using RIN: 3046-AB30.

Highlights from proposed regs

1. Essential job function suspended – for how long?

Unlike the ADA, the PWFA allows employees or applicants to be considered a “qualified employee,” even if they cannot perform one or more essential functions of the job — if the following conditions are met:

1. The inability to perform an essential function is “temporary”
2. The employee will be able to perform the essential function “in the near future,” and
3. The inability to perform the essential function can be reasonably accommodated.

But the terms “temporary” and “in the near future” are not defined in the PWFA. To fill the gaps, the EEOC’s proposed regs define the terms:

• “Temporary” is defined as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future’.”
• “In the near future” means “generally 40 weeks,” the timeframe of an average pregnancy. The proposed rule says essential functions will not always have to be suspended for 40 weeks. Rather, “the actual length of the temporary suspension … will depend on what the employee requires,” the EEOC explained in a summary.  

And here’s the biggest bombshell from the EEOC: In some cases, the temporary suspension of essential functions may last longer than 40 weeks.

Specifically, the EEOC proposes that the determination of “in the near future” should be made when an employee seeks “each accommodation that requires the suspension of one or more essential functions.”

The EEOC uses an example to explain: If an employee who is three months pregnant asks her employer for an accommodation – suspending an essential job function – then she will be “qualified” because the pregnancy will be over in less than 40 weeks. And then, when she returns to work after giving birth, if she needs another accommodation (a second temporary suspension of an essential job function), then that request must be considered separately, and she will be “qualified” as long as she can perform the essential function within 40 weeks. (See page 40 in the proposed regs.)

In a nutshell, the EEOC proposes that the clock restarts “once the pregnancy is over and the worker returns to work after leave.” In the EEOC’s view, this restart is necessary because it would be “difficult, if not impossible” for pregnant workers to predict their limitations and anticipate their needs after giving birth.

2. Reasonable accommodations

The proposed rule is 275 pages – and is chock full of examples to help employers handle accommodation and leave requests. And as anticipated, the proposed regs also include a list of potential reasonable accommodations under the PWFA, such as:

• Frequent breaks
• Sitting/standing
• Schedule changes, part-time work, and paid and unpaid leave
• Remote work
• Parking
• Light duty
• Making existing facilities accessible or modifying the work environment
• Job restructuring
• Temporarily suspending one or more essential job functions (as outlined in section 1)
• Acquiring or modifying equipment, uniforms or devices, and
• Adjusting or modifying examinations or policies.

For more details about each potential accommodation, see pages 55-58 in the proposed regs.

EEOC: 4 accommodations that are almost always reasonable

The EEOC went a step further, creating a short list of “simple modifications that will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by an employee due to pregnancy.” They are:

• Allowing an employee to carry water and drink, as needed, in the employee’s work area
• Allowing an employee additional restroom breaks
• Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, and
• Allowing an employee breaks as needed, to eat and drink.

Proposing these “modest or minor changes in the workplace” are temporary in nature and reasonable in “virtually all cases,” the EEOC aims “to improve how quickly employees will be able to receive certain simple, common accommodations for pregnancy under the PWFA and to reduce litigation.”

For scenario-based examples, scroll to page 70 in the proposed regs.

3. Documentation from medical providers

First things first: Documentation is not required under the PWFA. Similar to the ADA, the PWFA permits employers to have discussions with employees and applicants about the limitations and the need for accommodation.

But what if an employer wants to require supporting documentation? In such cases, the EEOC proposes:

• Employers should consider providing interim accommodations as a best practice, noting that employees often need pregnancy-related accommodations early in pregnancy before visiting a doctor and may find they need accommodations in between scheduled doctor visits.
• Employers may only be permitted to seek “reasonable documentation,” defined as “documentation that describes or confirms (1) the physical or mental condition; (2) that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3) that a change or adjustment at work is needed for that reason.”
• Documentation requests that violate the proposed rule may amount to “retaliation and coercion” because they may deter workers from seeking accommodations under the PWFA.

For more on reasonable documentation, scroll to pages 78-82 in the proposed regs.

Quick hits: What else to put on your radar

Here’s a brief summary of additional items the EEOC proposes for PFWA compliance:

• No severity threshold – Employees may seek accommodations for a “modest, minor and/or episodic problem or impediment: there is no threshold of severity under the PWFA.” (See pages 14-15 for more.)
• No “magic words” – Employees don’t have to use any specific language when asking for accommodation. The proposed rule suggests providing training to help frontline managers recognize when an employee has communicated a need. (See pages 29-31 for more.)
• No unnecessary delays – Employers may not delay responding to a request for accommodation. Such a delay could amount to a failure to accommodate violation. Importantly, “this can be true even if the reasonable accommodation is eventually provided,” the EEOC said. (See page 86 for more.)
• No healthcare providers of employers’ choosing – The EEOC does not believe “it will be practical or necessary” for an employer to “request or require” employees to be examined by a healthcare provider of the employer’s choosing. (See page 83 for more.)
• No forced leave – Employers may not require employees to take paid or unpaid leave if another reasonable accommodation is available, absent undue hardship. (See page 92 for more.)
• Abortion is covered – As an FYI, the definition of “related medical conditions” includes “having or choosing not to have an abortion.” (See page 26.) Not surprisingly, that inclusion is already being criticized, Bloomberg Law reports. However, it’s important to note that the EEOC proposes to consider the application of the PWFA regs for religious employers on a case-by-case basis, and it seeks comments on several issues pertaining to religious employers. (See pages 108-114 for more.)

What happens next? Public comments on the proposed regs will be accepted through Oct. 11. After the comment period closes, the EEOC has until Dec. 29 to consider the submissions and issue final regulations. We’ll keep you posted.