The U.S. Equal Employment Opportunity Commission (EEOC) published proposed regulations on August 11, 2023, regarding the recently enacted Pregnant Workers Fairness Act (PWFA). Those regulations will be subject to a sixty-day public comment period before they are revised or become law.
Although the PWFA mirrors the Americans with Disabilities Act (ADA) in many ways, the proposed regulations, if enacted, make clear that employers will need to analyze requests for accommodation from workers who are pregnant or recently pregnant differently from ordinary disability-based workplace accommodation requests.
Specifically, unlike the ADA, under the PWFA an employee is qualified for a position even if they cannot perform an essential function, so long as the employee is able to perform the essential function in the “near future.” The proposed regulations add a definition to the term in the “near future” that is not currently included in the PWFA. The proposed regulations specify a covered employee may have to be accommodated despite being unable to perform the essential functions of their job for approximately forty weeks.
The proposed regulations list medical conditions related to pregnancy and childbirth which may be entitled to accommodations under the PWFA using the forty-week analysis. These include mental health conditions (e.g. anxiety, depression, psychosis, and postpartum depression) and physical conditions that may not typically be thought of by employers as pregnancy-related conditions (e.g. loss of balance; vision changes; varicose veins; anemia; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; and high blood pressure).
Employers should review their current policies and internal processes around analyzing accommodation requests. If an employee is pregnant or was recently pregnant, employers should carefully analyze whether their request for accommodation falls within the PWFA’s broader protections, even if that request relates to limitations that do not immediately appear to be pregnancy-related. Employers should exercise extreme caution in denying a request for accommodation by employees covered by the PWFA if the basis for the denial is that the employee is not qualified, with or without an accommodation, to perform the essential functions of the job.
