On August 11, 2023, the Equal Employment Opportunity Commission (the EEOC) proposed regulations under the Pregnant Workers Fairness Act (PWFA). The PWFA took effect on June 27, 2023, and requires that employers with at least 15 employees make reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions. While other federal employment laws provide rights related to pregnancy in some situations, the PWFA fills gaps in federal law such as those related to pregnancy without a specific disability (meaning the ADA does not apply) or for employers with fewer than 50 employees not covered by the Family Medical Leave Act. Notices of proposed regulations typically have very detailed descriptions of proposed rules, and the August 11 notice of proposed rules is no exception. And although the regulations are currently just proposed, most, if not all, might be enacted, and they provide guidance on interpreting the statute before regulations become final.
Some key observations to note from the rules include:
Guidance on a “temporary period” of inability to perform an essential function and ability to perform “in the near future.” The PWFA’s obligations arise for an individual who is a “qualified employee.” A qualified employee includes someone who is unable to perform an essential job function for a “temporary period” when the function can be performed “in the near future,” with or without reasonable accommodation. The statute obviously leaves room for a lot of interpretation. The proposed rule sets a very specific point of reference, however, and provides that “in the near future” means generally forty weeks from the start of the temporary suspension of an essential function. The notice of proposed rules describes that although forty weeks is a typical duration of a full-term pregnancy, that the presumptive forty weeks does not necessarily run with the term of pregnancy. This is because, of course, the suspension of ability to perform will often not occur at the outset of pregnancy and may often extend beyond childbirth. Note that the statute and proposed rule still require that the employer be able to reasonably accommodate the essential function, and that if the inability to perform creates an undue hardship, an employer need not accommodate. An employer that denies an accommodation on the grounds that there is no way to reasonably accommodate, or that accommodation would be an undue hardship, should have a strong record of describing why (in the specific factual context) that is the case.
The definition of “essential function” is familiar. Helpfully, the proposed rule adopts the definition of “essential function” from the Americans with Disabilities Act (the ADA) regulations. Most employers are very familiar with the definition. Remember, when assessing if a function is essential, employees in the position must actually perform the function. Evidence is often (and hopefully) in the job description, and in the way incumbents in a position would describe it.
The proposed rules are replete with examples of accommodations under an expanded definition of “reasonable accommodation.” The definition of reasonable accommodation begins with a definition that tracks the ADA: modifications or adjustments that enable the person with a known limitation to perform the essential functions. The proposed regulations also add to the definition of reasonable accommodation because of differences in the PWFA compared to the ADA. The additions include describing the temporary suspension of essential functions that can be performed in the near future and providing examples of accommodations in this context; describing how leave, including intermittent leave, may be a reasonable accommodation; and accommodations related to lactation. The proposed rules linked above can look intimidating at first glance, but employers should review the examples on pages 54729 to 54733—there can be no doubt that if there is enforcement of the PWFA (or a claim under it), if an example seems applicable to the situation an employer faces, the employer will likely need to rely on the example or have a strong showing of why the facts make an example inapplicable.
Key Takeaways for Employers
- Oregon and Washington have more robust protections for pregnant and parenting employees than pre-PWFA federal law, such as Oregon’s and Washington’s laws providing for accommodations during pregnancy and post-childbirth. So, while Pacific Northwest employers will have to evaluate and ensure PWFA compliance, compliance may not result in major changes from current practices.
- Nonetheless, Oregon and Washington employers with 15 or more employees must evaluate the PWFA when assessing possible accommodations as well as when those accommodations might be required.
- Finally, although the proposed rules are just proposed, they provide insight into how accommodations are likely to be evaluated. As indicated above, the examples are worth reviewing and considering in accommodation situations. Of course, these are proposed rules, and so when the final rules are enacted, those should be used.
Interested parties have until October 10, 2023, to provide comments on the proposed rules, and the notice includes information about how to do so. Employer and employee associations and interested parties will no doubt provide a tranche of information for the EEOC to evaluate, and final regulations may not appear for some time. So, in the meantime, employers seeking to address their obligations under the PWFA should be aware that the proposed regulations may well reflect how the statute is interpreted.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
