Yesterday, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing the new Pregnant Workers Fairness Act (PWFA), released proposed regulations for public comments. 275 pages of them.
But I only needed the first eight or so to realize that the PWFA, which requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, has a few pitfalls for unwary employers.
Here’s one.
Many liken the PWFA to another accommodation statute, the Americans with Disabilities Act (ADA). The ADA requires covered employers to provide a reasonable accommodation to qualified individuals with a disability if doing so enables them to perform the job’s essential functions without imposing undue hardship on the business.
It is, therefore, somewhat axiomatic that the ADA does not require employers to remove essential job functions to accommodate an individual with a disability.
But the PWFA is different.
Under the PWFA, an individual can be a “qualified employee” if: (a) any inability to perform an essential function is for a temporary period; (b) the essential function could be performed in the near future; and (c) the inability to perform the essential function can be reasonably accommodated. However, the PWFA does not provide definitions of the terms “temporary” or “in the near future,” nor does it explain the third prong of this definition.
That’s where the EEOC comes in with its proposed regulations.
The proposed rule defines the term “temporary” to mean that the need to suspend one or more essential functions is “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.'” The proposed rule then defines “in the near future” to mean generally forty weeks from the start of the temporary suspension of an essential function. This is based on the time of a full-term pregnancy (forty weeks).
But it could be much longer than forty weeks. Here’s an example from the proposed regulations:
A worker who is three months pregnant seeking an accommodation of the temporary suspension of an essential function will meet the definition of “qualified” for “in the near future” because the pregnancy will be over in less than forty weeks. When the worker returns from leave after childbirth, if the worker needs an essential function temporarily suspended, they will meet the definition of “qualified” for “in the near future” if they could perform the essential function within forty weeks of the suspension. In other words, for “in the near future,” the forty weeks would restart once the pregnancy is over and the worker returns to work after leave.
Of course, suppose an employer can demonstrate that one or more accommodations would pose an undue hardship. In that case, it may lawfully deny the request unless the employer can provide part of the reasonable accommodation, which it must do.
There’s a lot more to the proposed PWFA regulations. A summary of the key provisions is available, and the EEOC is accepting comments until October 10, 2023.