The U.S. Equal Employment Opportunity Commission (EEOC) formally published its proposed regulations to implement the Pregnant Workers Fairness Act (PWFA) in the Federal Register on Aug. 11, 2023. Although the PWFA borrows from existing laws, including Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA), the PWFA imposes unique obligations on covered employers and the EEOC’s proposed regulations throw many familiar concepts out the window. The result is that employers will often bear the burden of establishing undue hardship, even in cases where an employee is unable to perform their essential job functions for 40+ weeks.

The proposed regulations are subject to a 60-day comment period and changes are typically made in the final version of the regulations based on comments submitted by interested stakeholders. The PWFA requires the EEOC to issue final regulations by December 29, 2023.

The PWFA went into effect on June 27, 2023, and requires that employers with at least 15 employees provide reasonable accommodations, absent undue hardship, to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The EEOC’s proposed regulations provide the agency’s view of how the PWFA should be interpreted. Below is a non-exhaustive summary of some of the new or clarifying information found in the EEOC’s 275+ pages of proposed regulations, as well as the preamble and interpretative guidance.

1. Who is entitled to an accommodation?

Qualified employees who are limited due to pregnancy, childbirth, and related medical conditions, as long as the accommodation does not create an undue hardship. Unlike the ADA, an employee who cannot perform their essential duties may still be qualified.

If an employee has a “known limitation” due to pregnancy, childbirth, or related medical condition, then the employee may request a reasonable accommodation. (The PWFA covers both employees and applicants. Here, we use the term employee to refer to both employee and applicant.) As long as the employee is “qualified,” the employer must grant the requested accommodation or an equally effective accommodation, unless doing so imposes an undue hardship.

2. What is a “known limitation”?

A mental or physical impediment or problem related to pregnancy, childbirth or related medical conditions, including common or minor conditions that has been communicated to the employer.

While many of the concepts in the PWFA model the ADA, “known limitation” is a unique statutory term that employers will grapple with.

Unlike the ADA, an employee does not have to show that a limitation meets a specific level of severity to be covered under the PWFA. Rather, the PWFA is intended to cover even uncomplicated and healthy pregnancies. The proposed rule says that a “limitation” means a modest, minor, or episodic impediment or problem. In addition to “impediments or problems,” the proposed definition of “limitation” includes “needs or problems related to maintaining the employee’s health or the health or their pregnancy,” as well as when the employee is seeking healthcare for a covered condition. According to the EEOC, an employee can also request accommodation to reduce increased pain or increased risk to the employee’s health that is related to pregnancy, childbirth, or a related medical condition.

Employers are only responsible for accommodating “known limitations.” A known limitation must be communicated to the employer by the employee or the employee’s representative, which is interpreted broadly. The employee is not required to use specific language and requesting an accommodation should not be a difficult task given that most requests will be straightforward, according to the EEOC. A request for accommodation requires only the employee (or their representative) to communicate that they have a limitation that is related to pregnancy, childbirth, or related medical conditions and they need an adjustment or change at work. The employer then has the obligation to respond. As explained further below, some types of accommodations are so common that the request can be granted immediately, others may require a more detailed interactive process.

3. What types of conditions and circumstances are included under the umbrella of “pregnancy, childbirth and related medical conditions”?

Conditions that are commonly associated with pregnancy and childbirth, as well as many others that may not be.

The terms pregnancy, childbirth, and related medical conditions are not defined in the PWFA. In the proposed rules, the EEOC explains that these terms have the same meaning in the PWFA as under Title VII. The EEOC construes these terms broadly and offers non-exhaustive examples of conditions that may be covered by the PWFA.

“Pregnancy” and “childbirth” include current pregnancy, past pregnancy, potential or intended pregnancy, labor, and childbirth (including vaginal and cesarean delivery).

“Related medical conditions” are conditions that “related to, are affected by, or arise out of pregnancy or childbirth.” Examples in the proposed regulations include termination of pregnancy, including by miscarriage, stillbirth, or abortion; infertility; fertility treatment; lactation and conditions related to lactation; use of birth control; menstrual cycles; postpartum depression, anxiety or psychosis; vaginal bleeding; preeclampsia; pelvic prolapse; preterm labor; ectopic pregnancy; gestational diabetes; cesarean or perineal wound infection; maternal cardiometabolic disease; endometriosis; changes in hormone levels; and many other conditions.

The proposed regulations also reference conditions that are not unique to pregnancy or childbirth, such as chronic migraine headaches, nausea or vomiting, high blood pressure; incontinence, carpal tunnel syndrome, and many other medical conditions. These conditions are only covered under the PWFA if the condition relates to pregnancy or childbirth (although the ADA or other civil rights statutes may apply) or are exacerbated by pregnancy or childbirth.

4. The PWFA says that an employee can be “qualified” and therefore eligible for accommodations when the employee has a temporary inability to perform the essential job functions. How long does an employer have to excuse an employee from performing essential functions for an employee to remain “qualified”?

The proposed regulations require employers excuse essential job functions for generally up to 40 weeks for each accommodation request, unless it would impose an undue hardship on the employer.