The Pregnant Workers Fairness Act (PWFA) became effective on June 27, 2023 and enhances the accommodation protections provided by the Americans with Disabilities Act (ADA).  For more information on how the PWFA differs from the ADA, see my prior article at the following link: “How the Pregnant Workers Fairness Act Enhances Protections for Pregnant Workers and What Employers Need to Know to Comply with the New Law.”

On August 11, 2023, the Equal Employment Opportunity Commission (EEOC) published its proposed rule to implement the PWFA.  The EEOC’s proposed rulemaking exemplifies how expansive the PWFA’s protections are and how aggressively the EEOC intends to enforce the PWFA.  As a result, employers need to be especially vigilant in how they conduct the interactive process with pregnant workers and ensure their policies/trainings are compliant with the PWFA’s requirements.

The EEOC’s Expansion of a “Known Limitation”

As an initial matter, the PWFA expands ADA protections to pregnant workers who have a “known limitation” that is related to pregnancy, childbirth, or related medical conditions. 

The EEOC has clarified that “known” requires the employee, applicant, or a representative of the employer or applicant to communicate the limitation to the employer.  Although, on its face, this seems like a positive definition for employers, employers need to be careful to not inadvertently discriminate against pregnant workers by removing work responsibilities where a limitation either does not truly exist or has not been identified to the employer.  In other words, preemptively removing or restructuring job duties based upon a presumed limitation may be deemed discriminatory under the PWFA.  Employers should always engage in the interactive process before taking any action with respect to the worker’s responsibilities. 

Additionally, the EEOC has explained that a pregnancy related limitation may be “a modest, minor, and/or episodic impediment or problem.”  In other words, the scope of potential limitations is wide and impossible to define.  Furthering its expansive approach (and similar to the ADA), “conditions shall be construed broadly to the maximum extent permitted by the PWFA.”  Employers need to be cautious not to disregard or ignore requests for pregnancy related accommodation, even if the limitation seems trivial to the employer. 

Temporary Suspension of Essential Job Functions

Like the ADA, under the PWFA a worker can be “qualified” for their position when they can perform the essential functions of the employment position with or without reasonable accommodation.  Under the PWFA, however, a worker can still be a qualified individual even if temporarily unable to perform an essential job function.  The EEOC defines “temporary” as lasting for a limited time and not permanent, but that it may extend beyond the “near future” which the EEOC defines as generally being within 40 weeks.  In other words, the EEOC contemplates situations where a worker cannot perform the essential functions of their position for more than 10 months.  As a result, an employer cannot argue that a worker who cannot perform an essential job function is not a qualified individual under the PWFA.  Nor can the employer argue that eliminating an essential job function is, by itself, an “unreasonable” accommodation under the PWFA.    

Instead, the employer must grant the accommodation unless it constitutes an undue hardship.  The EEOC makes clear that situations requiring the temporary elimination of an essential job function for 10 months will not always constitute an undue hardship.  An undue hardship only exists when an accommodation creates a “significant difficulty or expense for the operation of the [employer’s business].”  This difference between the PWFA and the ADA not only expands the scope of potential accommodations to include temporary elimination of essential job functions, but also transfers the burden of proof from the worker to the employer.  It is the employer’s burden to prove that an accommodation would constitute an undue hardship.    

The EEOC’s proposed rule provides an example of how a worker could be qualified under the PWFA.  Consider a pregnant landscaper whose essential job function involves moving bags of soil weighing 40 pounds, who is placed on a temporary 20 pound lifting restriction.  That worker would be deemed qualified if the employer could temporarily accommodate the lifting restriction, for example, with an assistive lifting device.  If an assistive device is not available or not feasible, the worker may still be qualified despite being unable to perform the essential job function if lifting the soil bags would be temporary (i.e., last less than 10 months). That said, the EEOC does explain “if the employer establishes that all possible accommodations that would allow the employee to temporarily suspend one or more essential functions would impose an undue hardship, then the [worker] will not be qualified under the [PWFA].” 

Although the EEOC’s example suggests situations where an undue hardship may occur, employers must be diligent in exhausting all the possible accommodations, including but not limited to limited duty, reassignment, and paid or unpaid leave before declaring all options are unduly burdensome.  This typically requires in-depth research and analysis of actual job functions and of potential accommodations.  It also runs contrary to the assumptions of many managers and supervisors, who are often far too quick to conclude that an accommodation constitutes an undue hardship.

Presumptively Reasonable Accommodations

The EEOC has explained that certain requested accommodations will “virtually always be found to be reasonable accommodations that do not impose an undue hardship.”  These accommodations include:

  1. Allowing pregnant workers to carry and drink water, as needed;
  2. Allowing a pregnant worker additional restroom breaks;
  3. Allowing a pregnant worker whose work requires standing to sit and whose work requires sitting to stand; and
  4. Allowing a pregnant worker breaks to eat and drink, as needed. 

The EEOC’s list of accommodations is less expansive than those identified in the House Committee on Education and Labor Report on the PWFA, which includes the following list of potential accommodations:

  1. The ability to sit or drink water;
  2. Receive closer parking;
  3. Have flexible hours;
  4. Receive appropriately-sized uniforms and safety apparel;
  5. Receive additional break time to use the bathroom, eat, and rest;
  6. Take leave or time off to recover from childbirth; and
  7. Be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

The EEOC’s decision not to include every single potential accommodation in House Committee’s list does not mean that the EEOC rejected certain accommodations as unreasonable or an undue hardship.  Instead, the EEOC’s list is intended to create an expedient interactive process where certain accommodations are presumed reasonable.  That said, Employers need to be diligent and waste no time in engaging in the interactive process regardless of what the requested accommodation is, but that is especially true regarding the EEOC’s list of presumed reasonable accommodations.  Simply put, the EEOC’s proposed rule establishes that unreasonable delay can be a violation of the PWFA and that delay in making the above accommodations is evidence of an unreasonable delay by the employer.  Employer policies or practices that limit water/snack breaks, restroom breaks, or sitting/standing without any reference to the potential for accommodations can create significant risk for systemic investigations and class action litigation.  Similarly, policies or practices that build in an extended time period for the accommodation process and do not permit fast-tracking can create risk as well.

The EEOC began accepting charges based on the PWFA on June 27, 2023.  The EEOC has previously indicated that systemic investigations relating to pregnancy accommodations are a top priority, so we know that EEOC will be flagging charges that raise these issues for more intense scrutiny.  The EEOC’s proposed rule confirms the agency’s intent and will fuel class action litigation stemming from how employers interact with their pregnant workers, particularly if the employer’s policies deviate from the EEOC’s presumed reasonable accommodations.  Employers should take this opportunity to review and update their policies and practices to avoid EEOC targeting.  For additional information regarding what investigators view as “red flags” when investigating a charge of discrimination, click on the following link: EEOC Shares Why Investigators “Red Flag” Charges for Potential Systemic Investigation and Class Litigation.