DOL Releases Proposed PWFA Pregnancy Protection Regulations
August 18, 2023
By Michael Burns, courtesy of SBAM-approved partner, ASE
Early last week the Department of Labor (DOL) issued notice of proposed regulations that provide employers guidance on how to comply with the newly enacted Pregnant Workers Fairness Act (PWFA). The PWFA took effect June 27, 2023, and applies to employers with 15 or more employees.
Though in practice the law works a lot like the Americans With Disabilities Act (ADA), there are some distinct differences. It requires employers to provide a reasonable accommodation to employees due to pregnancy but also conditions outside of the roughly nine months of pregnancy including person’s trying to get pregnant or trying not to get pregnant. In addition to pregnancy, childbirth, and labor the proposed regulations provide a “non-exhaustive list” of conditions that includes:
“Miscarriage, stillbirth, or abortion; infertility; fertility treatment; ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal (during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstrual cycles; use of birth control; and lactation and conditions related to lactation . . .”
It should be noted this includes conditions outside of pregnancy.
Unlike the ADA, the PWFA is not as strict around the accommodation process. The EEOC would find acceptable notice of a PWFA covered disability by word of mouth and will not necessarily require a doctor’s note (at least initially). Employers would not be allowed to require the notice for accommodation to be in writing or to fill out a form, although the regulations would allow this to be requested later.
A “qualified individual” that is pregnant under the PWFA is one that can perform the essential functions of her job with or without reasonable accommodation, or if she is temporarily unable to perform an essential function of the job but will be able to do so again in the near future. This is different than the ADA. The Equal Employment Opportunity Commission (EEOC) proposes this temporary period to be 40 weeks, which is the normal length of a full-term pregnancy.
A “reasonable accommodation” under the PWFA is the same as the ADA but also includes “breaks for use of the restroom, drinking, eating and/or resting; acquisition or modification of equipment, uniforms, or devices, including devices that assist with lifting or carrying…providing seating for jobs that require standing, or standing for jobs that require sitting…”
The above is particularly relevant given that menstruation and lactation are among conditions that could warrant a modification (accommodation) at work.
Paid or unpaid leave could be another reasonable accommodation, but employers may not require a leave it the employee is able to continue working and wants to do so.
The proposed regulations outline accommodations that the EEOC has said will always be considered reasonable without documentation. These are:
- Allowing the employee to keep water or another beverage throughout the day
- Providing extra bathroom breaks
- Letting the individual stand or sit
- Providing extra breaks for eating or drinking
Employers and employees are still expected to engage in an interactive process or dialogue on what a reasonable accommodation would be.
As stated above, documentation can be requested in a more limited context to establish the condition is pregnancy-related, and the work adjustments need to be made. This request can be to the employee’s health care provider, but there is not the option to send the employee to a provider of the employer’s choice as with ADA disabilities.
As with most other proposed regulations, there is a 60-day period where the EEOC will take comments for review and potentially make modifications to the regulations before they become final.
Lexology. Constangy Brooks & Prophete LLP EEOC Issues Proposed Regs On Pregnant Workers Fairness Act (8/8/2023)
LAW 360 Employment Authority. Proposed EEOC Regs Aim to Normalize Menstruation at Work. (8/10/2023)