Author, Ann Kuzee,
Attorney, TELUS Health (Formerly LifeWorks)

The Act and The Regulation

On June 27, 2023, the Pregnant Workers Fairness Act took effect requiring covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship”.

On August 11, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) published a proposed regulation in which the public had until October 10, 2023, to submit comments. The EEOC will review all of the submitted comments and make changes to the proposed regulation as they deem appropriate. A final regulation will follow. While we wait for the final regulation, employers should be adhering to the proposed regulation. Here are ten noteworthy parts to the proposed regulation.

Ten Noteworthy Parts to the Proposed Regulation

1. The PWFA provides accommodations not just for a current pregnancy, but also past and potential pregnancies. Because of the broad definition of the terms “pregnancy, childbirth, or related medical conditions,” accommodations can include addressing menstruation, infertility and fertility treatments (pre-pregnancy), endometriosis, miscarriage, and stillbirth. This is not an exhaustive list, and the employee does not have to specify a condition on the proposed list or use medical terms to describe a condition.
2. “Related medical conditions” can include other health conditions that existed before pregnancy or childbirth and for which the individual was perhaps receiving a reasonable accommodation under the ADA, but the condition may have been exacerbated by pregnancy or childbirth. The proposed regulation provides the following example, among other examples to explain: A worker may have high blood pressure that can be managed prior to the pregnancy, but once the worker is pregnant, the high blood pressure poses a risk to the pregnancy and the worker needs bed rest.
3. When it comes to communicating the need for an accommodation, the proposed regulation requires the individual to request two parts:
   1. First, the individual “must identify the limitation that is the physical or mental condition and that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”
   2. Second, the individual “must indicate that they need an adjustment or change at work.”

   Having these specific requirements in place will help supervisors, HR, and others to recognize when an individual is requesting PWFA. The proposed regulation also specifies that an initial request can be verbal, but the employer can ask the employee to submit their request in written form.

4. An individual can still be considered “qualified” to perform their job even if an essential function of their job is removed as long as: 1) any inability to perform an essential function is for a “temporary” period; 2) the essential function could be performed “in the near future”; and 3) the inability to perform the essential function can be reasonably accommodated. This is significantly different from the ADA. Under the ADA, an individual must perform the essential functions of their job with or without accommodations, and there is no requirement under the ADA to remove essential functions of a job as a form of reasonable accommodation.
5. The definition of “in the near future” means generally forty weeks from the start of the temporary suspension of an essential function. The forty weeks can occur prior to the pregnancy and can restart once the pregnancy is over, and the worker returns to work after the leave. Leave related to recovery from pregnancy, childbirth, or related medical conditions does not count as time when an essential function is suspended. The determination to use forty weeks is based on the time of a full-term pregnancy; however, the proposed rules request comments on whether 52 weeks would be a more appropriate timeframe.
6. The proposed regulation asserts that “Interim Reasonable Accommodations” should be provided to a pregnant individual when they may have an urgent need “due to the nature or sudden onset of a known limitation.” For example, upon discovering an urgent need, the employee may ask to go see their health care provider, need telework, require additional breaks, or be provided a later start time beginning immediately.
7. The proposed regulation cites four modifications that are virtually always reasonable accommodations that do not impose an undue hardship on an employer and refers to these as “Predictable Assessments.” These “Predictable Assessments” requiring accommodation are:
   1. allowing an employee to carry water and drink, as needed, in the employee’s work area;
   2. allowing an employee additional restroom breaks;
   3. allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
   4. allowing an employee breaks, as needed, to eat and drink.
8. Failing to engage in the interactive process is not being proposed as a violation of the PWFA, but “a covered entity’s failure to initiate or participate in the interactive process with the employee or applicant after receiving a request for reasonable accommodation could result in employer liability if the employee or applicant does not receive a reasonable accommodation even though one is available that would not have posed an undue hardship.” To avoid this potential liability, employers should engage in the interactive process.
9. When requiring documentation is reasonable, the employer is limited to documentation that describes or confirms the following:
   1. The physical or mental condition;
   2. That it is related, affect 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.
10. An employer may not defend the denial of an accommodation based on the lack of documentation if its request for documentation does not comport with the proposed regulation.

While there is a high possibility that there will be changes to the proposed regulation, it is likely that many of the above parts will remain intact, as they are, or, with some modifications, so becoming aware of these parts and beginning to understand them, is a good place to start and certainly necessary for compliance while waiting for the final regulation.

Additional Resources:

1. U.S. Equal Employment Opportunity Commission, “Regulations To Implement the Pregnant Workers Fairness Act”
2. Congress.gov, U.S. Congress. H.R. 2617 (See pages 1626 – 1631)
3. U.S. Equal Employment Opportunity Commission, “What You Should Know About the Pregnant Workers Fairness Act”
4. U.S. Equal Employment Opportunity Commission, “Pregnancy Discrimination Act of 1978”
5. U.S. Equal Employment Opportunity Commission, “Titles I and V of the Americans with Disabilities Act of 1990 (ADA)”
6. U.S. Equal Employment Opportunity Commission, “The Americans with Disabilities Act Amendments Act of 2008”