Regulations To Implement the Pregnant Workers Fairness Act

Federal RegisterAug 11, 2023

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1636

RIN 3046-AB30

Regulations To Implement the Pregnant Workers Fairness Act

AGENCY:

Equal Employment Opportunity Commission.

ACTION:

Proposed rule.

SUMMARY:

The Equal Employment Opportunity Commission is issuing a proposed rule to implement the Pregnant Workers Fairness Act, which requires a covered entity to provide reasonable accommodations to a qualified employee's or applicant's known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.

DATES:

Comments regarding this proposal must be received by the Commission on or before October 10, 2023. Please see the sections below entitled

ADDRESSES

and

SUPPLEMENTARY INFORMATION

for additional information on submitting comments.

ADDRESSES:

You may submit comments, identified by RIN number 3046-AB30, by any of the following methods:

•

Federal eRulemaking Portal: https://www.regulations.gov.

Follow the instructions for submitting comments.

•

Fax:

202-663-4114. Only comments of six or fewer pages will be accepted via FAX transmittal, in order to assure access to the equipment. Receipt of FAX transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at 202-921-2815 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL video phone).

•

Mail:

Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.

•

Hand Delivery/Courier:

Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.

Instructions:

The Commission invites comments from all interested parties. All comment submissions must include the agency name and docket number or the Regulatory Information Number (RIN) for this rulemaking. Comments need be submitted in only one of the above-listed formats. All comments received will be posted without change to

https://www.regulations.gov,

including any personal information you provide. However, the EEOC reserves the right to refrain from posting libelous or otherwise inappropriate comments, including those that contain obscene, indecent, or profane language; that contain threats or defamatory statements; that contain hate speech directed at race, color, sex, national origin, age, religion, disability, or genetic information; or that promote or endorse services or products.

Docket:

For access to the docket to read background documents or comments received, go to

https://www.regulations.gov

and search for “EEOC” and “RIN 3046-AB30.” The received comments also will be available for review at the Commission's library, 131 M Street NE, Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and 5 p.m., from October 10, 2023 until the Commission publishes the rule in final form.

FOR FURTHER INFORMATION CONTACT:

Sharyn Tejani, Associate Legal Counsel,

sharyn.tejani@eeoc.gov;

Office of Legal Counsel at 202-900-8652 (voice), 1-800-669-6820 (TTY). Requests for this rulemaking in an alternative format should be made to the Office of Communications and Legislative Affairs at (202) 921-3191 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL video phone).

SUPPLEMENTARY INFORMATION:

Introduction

On December 29, 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) into law.

The PWFA requires a covered entity to provide reasonable accommodations to a qualified employee's or applicant's known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity. 42 U.S.C. 2000gg-3 requires the Equal Employment Opportunity Commission (EEOC or Commission) to promulgate regulations to implement the PWFA.

Consolidated Appropriations Act, 2023, Public Law 117-328, Division II, 136 Stat. 4459, 6084 (2022) (codified at 42 U.S.C. 2000gg-2000gg-6).

The PWFA requires employers to provide reasonable accommodations to qualified workers affected by pregnancy, childbirth, or related medical conditions so they can remain healthy and in their jobs. The PWFA received broad bipartisan support in both chambers of Congress and from a wide variety of organizations representing industries, business associations, individual businesses, numerous civil rights and women's rights organizations, unions, and faith-based organizations.

The bill passed in the House by a vote of 315 to 101 and in the Senate by a vote of 73-24.

See, e.g., Fighting for Fairness: Examining Legislation to Confront Workplace Discrimination, Joint Hearing Before the Subcomm. on Civ. Rts. & Hum. Servs. and the Subcomm. on Workforce Prots. of the H. Comm. on Educ. & Lab.,

117th Cong. 153 (2021) [hereinafter

Fighting for Fairness

] (letter from scores of civil rights and women's rights groups supporting the Pregnant Workers Fairness Act);

id.

at 151 (letter of support from over two dozen individual businesses, the U.S. Women's Chamber of Commerce, and the National Association of Manufacturers);

Long Over Due: Exploring the Pregnant Workers Fairness Act (H.R. 2694), Hearing Before the Subcomm. on Civ. Rts. & Hum. Servs. of the H. Comm. on Educ. & Lab.,

116th Cong. 142 (2019) [hereinafter

Long Over Due

] (letter of support from health care providers and public health professionals);

id.

at 179 (letter of support from the National WIC Association);

id.

at 183 (letter of support from the March of Dimes); 168 Cong. Rec. S7,049 (daily ed. Dec. 8, 2022) (statement of Sen. Patty Murray) (“[t]his is, fundamentally, a bipartisan bill that we have worked closely with our Republican colleagues on. Senator Cassidy coleads this bill. He has been an amazing partner”);

id.

at S7,048 (statement of Sen. Robert P. Casey, Jr.) (noting that the bill has bipartisan support and that “[e]veryone from the ACLU to the U.S. Conference of Catholic Bishops, to the U.S. Chamber of Commerce supports this legislation”).

Roll Call 143, Bill Number: H.R. 1065,

Office of the Clerk, U.S. House of Representatives (May 14, 2021),

https://clerk.house.gov/Votes/2021143

(setting out the House vote tally for the Pregnant Workers Fairness Act); 168 Cong. Rec. S10,071 (daily ed. Dec. 22, 2022) (setting out the Senate vote tally for the Pregnant Workers Fairness Act to be added as an amendment to the Consolidated Appropriations Act, 2023).

The PWFA Addresses Limitations in Coverage Under Title VII, the ADA, and the FMLA

The PWFA recognizes that there are gaps in the Federal legal protections for workers affected by pregnancy, childbirth, or related medical conditions, even though they may have certain rights under existing civil rights laws, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e

et seq.

(as amended by the Pregnancy Discrimination Act (PDA)) (Title VII), the Americans with Disabilities Act of 1990, 42 U.S.C. 12111

et seq.

(ADA),

the Family and Medical Leave Act of 1993, 29 U.S.C. 2601

et seq.

(FMLA), and various State and local laws.

The references to the ADA in this preamble are intended to apply equally to the Rehabilitation Act of 1973, as all nondiscrimination standards under Title I of the ADA also apply to Federal agencies under Section 501 of the Rehabilitation Act, and Federal applicants and employees are covered by the PWFA.

See, e.g.,

Cal. Gov't Code 12945(a)(3); N.D. Cent. Code Ann. 14-02.4-03; W. Va. Code 5-11B-2;

see also

U.S. Dep't of Lab.,

Employment Protections for Workers Who Are Pregnant or Nursing, https://

www.dol.gov/agencies/wb/pregnant-nursing-employment-protections

(last visited Apr. 4, 2023) [hereinafter

Employment Protections for Workers Who Are Pregnant or Nursing

]. In addition, Federal laws involving Federal funding such as Title IX of the Education Amendments Act of 1972 (20 U.S.C. 1681

et seq.

) and the Workforce Innovation and Opportunities Act (29 U.S.C. 3240) provide protection from sex discrimination, including discrimination based on pregnancy, childbirth, or related medical conditions.

Under Title VII, a worker affected by pregnancy, childbirth, or related medical conditions may be able to obtain a workplace modification to allow them to continue to work.

Typically courts have only found in favor of such claims if the worker can identify another individual similar in their ability or inability to work who received such an accommodation, or if there is some direct evidence of disparate treatment (such as a biased comment or a policy that, on its face, excludes pregnant workers).

However, there may not always be similarly situated employees. For this reason, some pregnant workers have not received simple, common-sense accommodations, such as a stool for a cashier

or bathroom breaks for a preschool teacher.

And even when the pregnant worker can identify other workers who are similar in their ability or inability to work, some courts have still not found a Title VII violation.

Title VII protects workers from discrimination based on sex, which includes pregnancy, childbirth, or related medical conditions. 42 U.S.C. 2000e(k). Title VII's prohibition on sex discrimination includes discrimination “with respect to . . . compensation, terms, conditions, or privileges of employment.” 42 U.S.C. 2000e-2(a)(1). Title VII also provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. 2000e(k).

See, e.g., Young

United Parcel Serv., Inc.,

575 U.S. 206, 229 (2015).

See, e.g., Portillo

IL Creations Inc.,

2019 WL 1440129, at *5 (D.D.C. Mar. 31, 2019).

See, e.g., Wadley

Kiddie Acad. Int'l, Inc.,

2018 WL 3035785, at *4 (E.D. Pa. June 19, 2018).

See, e.g., EEOC

Wal-mart Stores East, L.P.,

46 F.4th 587, 597-99 (7th Cir. 2022) (concluding that the employer did not engage in discrimination when it failed to accommodate pregnant workers with light duty assignments, even though the employer provided light duty assignments for workers who were injured on the job);

but see, e.g., Legg

Ulster Cnty.,

820 F.3d 67, 69, 75-77 (2d Cir. 2016) (vacating judgment for the employer where officers injured on the job were entitled to light duty but pregnant workers were not).

Under the ADA, certain workers affected by pregnancy, childbirth, or related medical conditions may have the right to accommodations if they show that they have an ADA disability; this standard does not include pregnancy itself but instead requires the showing of a pregnancy-related disability.

42 U.S.C. 12102(2) & (4); 29 CFR part 1630 app. 1630(h); EEOC,

Enforcement Guidance on Pregnancy Discrimination and Related Issues

II (2015),

https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues

[hereinafter

Enforcement Guidance on Pregnancy Discrimination

Under the FMLA, covered workers can receive up to 12 weeks of job-protected unpaid leave for, among other things, a serious health condition, the birth of a child, and bonding with a newborn within one year of birth.

However, employees must work for an employer with 50 or more employees within 75 miles of their worksite and meet certain tenure requirements in order to be entitled to FMLA leave.

Survey data from 2018 show that only 56 percent of employees are eligible for FMLA leave.

Further, the FMLA only provides unpaid leave—it does not require reasonable accommodations that would allow workers to stay on the job and continue to be paid.

29 U.S.C. 2612(a)(1); 29 CFR 825.120.

29 U.S.C. 2611(2)(A), (B).

Scott Brown et al.,

Employee and Worksite Perspectives of the Family and Medical Leave Act: Executive Summary for Results from the 2018 Surveys

3 (2020),

https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018SurveyResults_ExecutiveSummary_Aug2020.pdf

[hereinafter

Brown et al.

The PWFA responds to these and other limitations and fills the gaps in current Federal legal protections. Under the PWFA, as set forth fully below, coverage is the same as Title VII and the ADA, and reasonable accommodations are available to help apply for a job; to perform a job; to enjoy equal benefits and privileges of employment; and to temporarily suspend the performance of an essential function of a position, if certain conditions are met. Importantly, the PWFA allows workers

with uncomplicated pregnancies to seek accommodations, recognizing that even uncomplicated pregnancies may create limitations for workers.

This preamble uses the term “worker” interchangeably with “employee or applicant.” For purposes of the PWFA, the term “worker” does not apply to independent contractors.

See, e.g., Long Over Due, supra

note 2, at 7 (statement of Rep. Jerrold Nadler) (“Pregnancy is not a disability. Sometimes, due to complications or even in healthy pregnancies, workers need a reasonable accommodation from their employer.”). Throughout this document, the EEOC uses the term “uncomplicated” pregnancy rather than “healthy” or “normal.”

In addition to pregnancy and childbirth, the PWFA covers “related medical conditions.”

“Related medical conditions” is a term used in Title VII, that previously has been defined by the Commission.

As discussed in detail in the section-by-section analysis of part 1636.3(b), the proposed rule explains that the existing definition will be used for the PWFA, as it is appropriate for the text of the statute. This definition reflects the government's longstanding and consistent interpretation of the phrase and, based on canons of statutory interpretation, is the legal definition Congress intended by choosing to use the same language in the same type of statute. Further, as explained in the proposed rule, the PWFA covers limitations stemming from medical conditions that are episodic in nature and related to pregnancy or childbirth. The PWFA also covers existing conditions that are exacerbated by, and therefore related to, pregnancy or childbirth, such as high blood pressure, anxiety, or carpal tunnel syndrome. While some workers may be able to address any issues that arise related to these conditions without a reasonable accommodation, indeed without even mentioning the issue at the workplace, others may need reasonable accommodations that are covered under the PWFA.

42 U.S.C. 2000gg-1.

42 U.S.C. 2000e(k);

See Enforcement Guidance on Pregnancy Discrimination, supra

note 11, at I.A.4 (2015).

As set out in detail in the section-by-section analysis of parts 1636.3(h) and (i), the types of reasonable accommodations that a worker may seek under the PWFA include, but are not limited to: job restructuring; part-time or modified work schedules; more frequent breaks; acquisition or modification of equipment, uniforms, or devices; allowing seating for jobs that require standing or standing in jobs that require sitting; appropriate adjustment or modification of examinations or policies; permitting the use of paid leave (whether accrued, short-term disability, or another type of employer benefit) or providing unpaid leave, including to attend health care-related appointments and to recover from childbirth;

assignment to light duty;

telework; and, accommodating a worker's inability to perform one or more essential functions of a job by temporarily suspending the requirement that the employee perform that function, if the inability to perform the essential function is temporary and the worker could perform the essential function in the near future.

The proposed regulation includes a non-exhaustive list of examples of possible reasonable accommodations, and the preamble and the proposed appendix include additional examples.

The Commission recognizes that different types of employers use different terms for time away from work, including leave, paid time off (PTO), time off, sick time, vacation, and administrative leave, among others. Throughout the preamble, the proposed regulation, and the proposed appendix, the Commission uses the term “leave” or “time off” and intends those terms to cover leave however it is identified by the specific employer.

The Commission recognizes that “light duty” programs, or other programs providing modified duties, can vary depending on the covered entity. EEOC,

Enforcement Guidance: Workers' Compensation and the ADA,

text above Question 27 (1996),

https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-

ada

[hereinafter

Enforcement Guidance: Workers' Compensation

]. In the context of the proposed regulation, the Commission intends “light duty” to include the types of programs included in Questions 27 & 28 of the

Enforcement Guidance on Workers' Compensation

and any other policy, practice, or system that a covered entity has for accommodating employees, including when one or more essential functions of a position are temporarily excused.

42 U.S.C. 2000gg(6).

Reasonable Accommodations for Pregnancy, Childbirth, or Related Medical Conditions Are Critically Important for Workers and Their Families

The reasonable accommodations provided by the PWFA for workers experiencing pregnancy, childbirth, or related medical conditions are critical to the economic security of women workers and their families. Women are the primary, sole, or co-breadwinners in nearly 64 percent of families, earning at least half of their total household income.

As of 2021, over 66 percent of women in the United States who gave birth in the prior year were in the labor force,

up from about 57 percent in 2006.

Moreover, an increasing number of pregnant workers are working later into their pregnancies—over 80 percent of first-time mothers who worked during their pregnancy worked into the last three months before their child's birth.

The lack of accommodations for pregnancy, childbirth, or related medical conditions means that pregnant workers can be faced with an impossible choice between their job and a necessary paycheck or their health or the health of their pregnancy.

Without accommodations, pregnant workers too often may find that they must quit their jobs or face being fired, which can also mean that workers lose their employer-sponsored health insurance at a time when they especially need it. Others are forced to take leave, which can mean that the worker does not have leave to recover from childbirth later. By providing a path for accommodations for these workers, the PWFA will protect workers' ability to earn, remain in the workforce, and advance in their careers.

H.R. Rep. No. 117-27, pt.1, at 21-22 (2021) (internal citations omitted);

id.

at 25 (noting that “[p]regnant workers who are pushed out of the workplace might feel the effects for decades, losing out on everything from 401(k) or other retirement contributions to short-term disability benefits, seniority, pensions, social security contributions, life insurance, and more”). In the NPRM, when using language from specific sources, EEOC uses the language of that source (

e.g.,

“women” or “pregnant women”).

U.S. Census Bureau,

Births in the Past Year and Labor Force Participation for Women Aged 16-50, by Education: 2006 to 2019,

(select “Historical Table 5”) (Feb. 15, 2023),

https://www.census.gov/library/visualizations/time-series/demo/fertility-time-series.html

[hereinafter

Births in the Past Year and Labor Force Participation

];

see also

Steven Ruggles et al., IPUMS USA: Version 12.0 (2022),

https://doi.org/10.18128/D010.V12.0

[hereinafter

IPUMS Data

] (providing that, in 2021, over 66 percent of women in the U.S. who gave birth in the prior year were in the labor force). Data are available by request to registered IPUMS USA users; please contact

ipums@umn.edu.

Births in the Past Year and Labor Force Participation, supra

note 23, (select “Historical Table 5”).

Lynda Laughlin, U.S. Census Bureau, U.S. Dep't of Com.,

Maternity Leave and Employment Patterns of First-Time Mothers: 1961-2008

6 (2011),

https://www2.census.gov/library/publications/2011/demo/p70-128.pdf

[hereinafter

Maternity Leave and Employment Patterns of First-Time Mothers

See, e.g.,

Markup of the Paycheck Fairness Act; Pregnant Workers Fairness Act; Workplace Violence Prevention for Health Care and Social Service Workers Act 54:46 (2021),

https://www.youtube.com/watch?v=p6Ie2S9sTxs

[hereinafter

Markup of the Pregnant Workers Fairness Act

] (statement of Rep. Kathy Manning) (stating that the goal of the PWFA is to help pregnant workers “to deliver healthy babies while maintaining their jobs”);

id.

at 21:50 (statement of Rep. Robert C. Scott) (stating that, “without the basic protections, too many workers are forced to choose between a healthy pregnancy and their paychecks”);

id.

at 1:35:03 (statement of Rep. Lucy McBath) (stating that “no mother should ever have to choose between the health of themselves and their child or a paycheck”).

Importantly, the economic damage done to pregnant workers and their families due to the lack of a right to reasonable accommodation during pregnancy is especially hard-hitting for workers in low-wage jobs. These workers are the least likely to have flexibility in their jobs or savings upon which to draw if they are unemployed or on unpaid leave.

H.R. Rep. No. 117-27, pt. 1 at 22-23.

Accommodations for limitations due to pregnancy, childbirth, or related medical conditions are especially necessary for pregnant workers who face complications or a high risk of complications, or for those who hold particular kinds of jobs. As Representative Jahana Hayes noted during the debate preceding the House Committee vote on the PWFA, “women of color . . . are more likely to hold inflexible and physically demanding jobs that can present specific challenges for pregnant workers, such as home health aides, food service workers, package handlers, and cleaners. The labor-intensive requirements of these jobs sometimes require a temporary reasonable accommodation so women can remain on the job while protecting the health of themselves and their babies.”

Markup of the Pregnant Workers Fairness

Act,

supra

note 26, at 1:41 (statement of Rep. Jahana Hayes).

In fact, “Black women are more than three times as likely as White women to die from pregnancy-related causes, while American Indian/Alaska Native [women] are more than twice as likely”

and a recent study shows that negative health outcomes during pregnancy disproportionately affect Black women compared to White women regardless of wealth.

Additionally, “Black mothers are more likely to experience stillbirth compared to Hispanic and White mothers.”

Providing for workplace accommodations due to pregnancy, childbirth or related medical conditions is one step that may help address the maternal health crisis.

White House Blueprint for Addressing the Maternal Health Crisis

15 (2022),

https://www.whitehouse.gov/wp-content/uploads/2022/06/Maternal-Health-Blueprint.pdf.

Kate Kennedy-Moulton et al.,

Maternal and Infant Health Inequality: New Evidence from Linked Administrative Data

5, Nat'l Bureau of Econ. Rsch., Working Paper No. 30,693, (2022),

https://www.nber.org/system/files/working_papers/w30693/w30693.pdf

(finding that maternal and infant health vary with income, but infant and maternal health in Black families at the top of the income distribution is similar to or worse than that of White families at the bottom of the income distribution).

CDC,

Black Mothers Are More Likely to Experience Stillbirth Compared to Hispanic and White Mother,

(Nov. 3, 2022),

https://www.cdc.gov/ncbddd/stillbirth/features/kf-black-mothers-stillbirth.html.

See

U.S. Dep't of Lab.,

Black Mothers at Work: A Discussion on Workplace Challenges and Supports,

(Apr. 11, 2023),

https://usdolevents.webex.com/recordingservice/sites/usdolevents/recording/654d1e18bab8103bbdff00505681d077/playback

(discussing how Federal employment laws can respond to some of the issues faced by Black mothers at work).

The PWFA Limits the Burden on Covered Entities

The PWFA is carefully designed to limit the burden on covered entities. Like the ADA, the PWFA provides for reasonable accommodations in certain circumstances. While there are not data regarding the costs of accommodations under the PWFA, there are data regarding the costs of accommodations under the ADA, which show that most accommodations are low or no cost. According to a study by the Job Accommodation Network (JAN) regarding accommodations for people

with disabilities, most employers report no costs or low costs for providing these accommodations. Of the 720 employers who were able to provide cost information related to accommodations they had provided, 356 (49.4 percent) said the accommodations needed by their employees cost nothing. Another 312 (43.3 percent) experienced a one-time cost. Only 52 (7.2 percent) said the accommodation resulted in an ongoing, annual cost to the company. Of those accommodations that did have a one-time cost, the median one-time expenditure as reported by the employer was $300.

While there are not data regarding the cost for accommodations specifically for pregnancy, one survey concluded that the most common accommodation needed by pregnant workers was additional breaks, especially for using the bathroom, which is a low- to no-cost accommodation.

Moreover, given the nature of the accommodations required by the PWFA, virtually all will be temporary. Given these facts and the cost data from accommodations under the ADA, the actual costs an employer may face will likely be temporary and low.

Job Accommodation Network,

Costs and Benefits of Accommodation,

(May 4, 2023),

https://askjan.org/topics/costs.cfm

[hereinafter

Costs and Benefits of Accommodation

Eugene R. Declercq et al.,

Listening to Mothers III: New Mothers Speak Out

36 (2013),

https://www.nationalpartnership.org/our-work/resources/health-care/maternity/listening-to-mothers-iii-new-mothers-speak-out-2013.pdf

[hereinafter

Listening to Mothers III

Additionally, as set out in the accompanying economic analysis of the PWFA pursuant to Executive Order 12866, the number of workers seeking an accommodation from a given employer in a year will be small. The EEOC has calculated that in 2021, women of reproductive age (aged 16-50 years) comprised approximately 33 percent of U.S. workers. Of these, approximately 4.7 percent gave birth to at least 1 child the previous year.

Not all pregnant workers require an accommodation, so the actual number of accommodations may be even lower than this number suggests. And, because the law will keep pregnant workers in the workforce, even if an employer does incur costs to provide a PWFA accommodation, the employer also may experience a reduction in turnover and money spent to hire and train a new employee.

See IPUMS Data, supra

note 23;

see also

EEOC,

Compliance Manual Section 2: Threshold Issues

2-III.A (2009),

http://www.eeoc.gov/policy/docs/threshold.html#2-III-A.

The NPRM, proposed regulation, and proposed appendix use the term “covered entity” and the term “employer” interchangeably. The NPRM, proposed regulation, and proposed appendix use the term “employee or applicant” and “employee”; where appropriate, “employee” or “employee or applicant” means “employee, applicant, or former employee.”

Section 1636.3 Definitions Specific to PWFA

1636.3(a) Known Limitation

The proposed rule reiterates the definition of “known limitation” from section 2000gg(4) of the PWFA and then provides definitions for the operative terms.

1636.3(a)(1) Known

Paragraph (1) adopts the definition of “known” based on the PWFA and thus defines it to mean that the employee or applicant, or a representative of the employee or applicant, has communicated the limitation to the covered entity.

1636.3(a)(2) Limitation

Paragraph (2) adopts the definition of “limitation” based on the PWFA and thus defines it to mean a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The “physical or mental condition” that is the limitation may be a modest, minor, and/or episodic impediment or problem. The definition encompasses when a worker affected by pregnancy, childbirth, or related medical conditions has a need or problem related to maintaining their health or the health of their pregnancy.

The definition also includes when the worker is seeking health care related to the pregnancy, childbirth, or a related medical condition itself. This is consistent with the ADA which permits reasonable accommodations for obtaining medical treatment

and recognizes that for pregnancy, childbirth, or related medical conditions the proper course of care can include regular appointments and monitoring by a health care professional.

The preamble, proposed regulation, and proposed appendix use the term “maintain health or the health of the pregnancy.” This includes avoiding risk to the employee's or applicant's health or to the health of their pregnancy.

EEOC,

Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA,

at text after n. 49 (2002),

http://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada

[hereinafter

Enforcement Guidance on Reasonable Accommodation

See, e.g.,

Office of Women's Health, U.S. Dep't of Health and Human Servs.,

Prenatal Care

(last visited July 18, 2023) (stating that during pregnancy usually visits are once a month until week 28, twice a month from weeks 28-36 and once a week from weeks 36 to birth)

https://www.womenshealth.gov/a-z-topics/prenatal-care;

Am. Coll. of Obstetricians & Gynecologists, Comm. Opinion No. 736,

Optimizing Post-Partum Care

(stating the importance of regular post-partum care) (2021)

(

https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-postpartum-care

) & Opinion No. 826,

Protecting and Expanding Medicaid to Improve Women's Health

(encouraging the expansion of Medicaid to improve post-partum care) (2021) (

https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2021/06/protecting-and-expanding-medicaid-to-improve-womens-health

The general principle informing the proposed rule's definition is that the physical or mental condition (the limitation) required to trigger the obligation to provide a reasonable accommodation under the PWFA does not require a specific level of severity. This is clear from the text of the statute, which does not contain a level of severity, other than stating that the limitation does not need to meet the definition of a “disability” under the ADA.

The lack of a level of severity is also necessary given the need the statute seeks to fill. Workers who can show that their pregnancy-related condition meets the definition of a disability may be eligible to receive an accommodation under the ADA; workers whose limitations do not reach that threshold are ineligible for such accommodations, and the PWFA is intended to cover those workers.

Additionally, the definition covers situations where a worker seeks an accommodation in order to maintain their health or the health of their pregnancy and avoid more serious consequences and when a worker seeks health care for their pregnancy, childbirth, or related medical conditions.

Practically, allowing for accommodations to maintain health and attend medical appointments also increases the chances that the accommodation is minor and may decrease the need for a more extensive accommodation because the worker may be able to avoid more serious complications.

42 U.S.C. 2000gg(4).

See, e.g.,

H.R. Rep. No. 117-27, pt. 1, at 12 (workers whose pregnancy-related impairments do not substantially limit a major life activity and who are not covered by the ADA can be covered by the PWFA);

id.

at 22-23 (accommodations are frequently needed by, and should be provided to, people with healthy pregnancies);

id.

(example of an “uneventful pregnancy” in which a woman needed more bathroom breaks);

id.

at 14-22 (outlining the gaps left by Title VII and the ADA that the PWFA is intended to fill so that pregnant workers can receive reasonable accommodations);

id.

at 56 (noting that “minor limitations” can be covered because they presumably only require minor accommodations).

Enforcement Guidance on Reasonable Accommodation, supra

note 44, at text above Question 17 (providing reasons for which an employee may receive an accommodation, including to obtain medical treatment and to avoid temporary adverse conditions in the work environment because of the effect on the worker's health).

See, e.g., Markup of the Pregnant Workers Fairness Act, supra

note 26, at 54:46 (statement of Rep. Kathy E. Manning) (goal of the PWFA is help pregnant workers “to deliver healthy babies while maintaining jobs”);

id.

at 21:50 (statement of Rep. Robert C. Scott) (“[W]ithout these protections, too many workers are forced to choose between a healthy pregnancy and their paychecks”);

id.

at 1:35 (statement of Rep. Lucy McBath) (“[N]o mother should ever have to choose between the heath of themselves and their child or paycheck.”);

id.

at 1:44 (statement of Rep. Suzanne Bonamici) (“[P]regnant workers should not have to choose between a healthy pregnancy and a paycheck.”).

Because the standard for known limitation in the statute does not include a specific level of severity and accommodations are available for non-severe physical or mental conditions, whether a worker has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions shall be construed broadly to the maximum extent permitted by the PWFA.

Related to, Affected by, or Arising Out of

Whether a physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions usually will be obvious. For example, if an employee is pregnant and as a result has pain when standing for long periods of time, the employee's physical or mental condition (pain when standing for a protracted period) is related to the employee's pregnancy. An employee who is pregnant and because of the pregnancy cannot lift more than 20 pounds has a physical condition related to pregnancy. An employee who is pregnant and is seeking time off for prenatal health care appointments is attending a medical appointment related to the pregnancy. An employee who requests an accommodation to attend therapy appointments for postpartum depression has a medical condition related to pregnancy (postpartum depression) and is obtaining health care for the related medical condition. A pregnant employee who is seeking an accommodation to limit exposure to secondhand smoke to protect the health of their pregnancy has a physical or mental condition (trying to maintain the employee's health or the health of their pregnancy or increased sensitivity to secondhand smoke) related to pregnancy. A pregnant worker seeking time off in order to get an amniocentesis is attending a medical appointment related to the pregnancy. An employee who requests leave for IVF treatment for the worker to get pregnant has a related medical condition (difficulty in becoming pregnant or infertility) and is seeking health care related to it. An employee whose pregnancy is causing fatigue has a physical condition (fatigue) related to pregnancy. An employee whose pregnancy is causing back pain has a physical condition (back pain) related to pregnancy. This is not an exhaustive list of physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The Commission recognizes, however, that some physical or mental conditions or limitations, including some of those in the examples above, may occur even if a person is not pregnant (

e.g.,

depression, hypertension, constraints on lifting). To the extent that a covered entity has reasonable concerns about whether a physical or mental condition or limitation is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” the employer may request information from the employee regarding the connection, using the principles set out in section 1636.3(l) about the interactive process and supporting documentation. For the most part, the Commission anticipates that determining whether a limitation or physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions will be a straightforward determination that can be accomplished through a conversation between the employer and the employee as part of the interactive process and without the need for the employee to obtain documentation or verification, such as documentation from a health care provider. Of course, even if a covered entity concludes that a limitation is not covered by the PWFA, the covered entity should consider whether the limitation constitutes a disability that is covered by the ADA.

There may be situations where a physical or mental condition begins as something that is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, and, once the pregnancy, childbirth, or related medical condition is over, the limitation remains. If an employer has questions regarding whether the limitation is still related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, the employer may use the principles set out in the sections regarding the interactive process and supporting documentation. Additionally, there may be situations where that limitation qualifies as a disability under the ADA. In those situations, an employer may use the principles set out in the sections on the interactive process and supporting documentation for the ADA.

1636.3(b) Pregnancy, Childbirth, or Related Medical Conditions

The PWFA uses the term “pregnancy, childbirth, or related medical conditions,” which appears in Title VII's definition of sex.

Because Congress chose to write the PWFA using the same language as Title VII, in the proposed rule the Commission gives the term “pregnancy, childbirth, or related medical conditions” the same meaning under the PWFA as under Title VII.

42 U.S.C. 2000e(k).

See, e.g., Texas Dep't of Housing & Cmty. Affs.

Inclusive Cmtys. Project,

576 U.S. 519, 536 (2015) (“If a word or phrase has been . . . given a uniform interpretation by inferior courts . . . , a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” (omissions in original) (quoting Antonin Scalia & Bryan A. Garner,

Reading Law

323 (2012));

Bragdon

Abbott,

524 U.S. 624, 644-45 (1998) (“When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.”);

Lorillard

Pons,

434 U.S. 575, 581 (1978) (“[W]here, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.”);

Hall

U.S. Dep't of Agric.,

984 F.3d 825, 840 (9th Cir. 2020) (“Congress is presumed to be aware of an agency's interpretation of a statute. We most commonly apply that presumption when an agency's interpretation of a statute has been officially published and consistently followed. If Congress thereafter reenacts the same language, we conclude that it has adopted the agency's interpretation.”) (citations and internal quotations omitted); Antonin Scalia & Bryan A. Garner,

Reading Law

323 (2012) (“[W]hen a statute uses the very same terminology as an earlier statute—especially in the very same field, such as securities law or civil-rights law—it is reasonable to believe that the terminology bears a consistent meaning.”).

To assist workers and covered entities, the proposed regulation includes a non-exhaustive list of examples of pregnancy, childbirth, or related medical conditions that the Commission has concluded generally fall within the statutory definition. These include conditions that Federal courts and the EEOC have already concluded are part of the definition under Title VII as well as other conditions that are based on the expertise of medical professionals. The list in the proposed regulation for the definition of “pregnancy, childbirth, or related medical conditions” includes current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.

The Commission emphasizes that the list in the regulation is non-exhaustive, and to receive an accommodation an employee or applicant does not have to specify a condition on this list or use medical terms to describe a condition.

Enforcement Guidance on Pregnancy Discrimination, supra

note 11, at I.A. (“pregnancy, childbirth, or related medical conditions” include current pregnancy, past pregnancy, potential or intended pregnancy, infertility treatment, use of contraception, lactation, breastfeeding, and the decision to have or not to have an abortion, among other conditions);

see, e.g., Hicks

City of Tuscaloosa,

870 F.3d 1253, 1259-60 (11th Cir. 2017) (finding lactation and breastfeeding covered under the PDA, and asserting that “[t]he PDA would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding—an important pregnancy-related physiological process”) (internal citation and quotation omitted);

EEOC

Houston Funding II, Ltd.,

717 F.3d 425, 429-30 (5th Cir. 2013) (“[A]s both menstruation and lactation are aspects of female physiology that are affected by pregnancy, each seems readily to fit into a reasonable definition of `pregnancy, childbirth, or related medical conditions' ”);

Doe

C.A.R.S. Prot. Plus, Inc.,

527 F.3d 358, 364 (3d Cir. 2008) (holding that the PDA prohibits an employer from discriminating against a female employee because she has exercised her right to have an abortion);

Kocak

Cmty. Health Partners of Ohio, Inc.,

400 F.3d 466, 470 (6th Cir. 2005) (stating that the plaintiff “cannot be refused employment on the basis of her potential pregnancy”);

Turic

Holland Hosp., Inc.,

85 F.3d 1211, 1214 (6th Cir. 1996) (finding the termination of a pregnant employee because she contemplated having an abortion violated the PDA);

Piraino

Int'l Orientation Res., Inc.,

84 F.3d 270, 274 (7th Cir. 1996) (rejecting “surprising claim” by the defendant that no pregnancy discrimination can be shown where the challenged action occurred after the birth of the plaintiff's baby);

Carney

Martin Luther Home, Inc.,

824 F.2d 643, 648 (8th Cir. 1987) (referencing the PDA's legislative history and noting commentator agreement that “[b]y broadly defining pregnancy discrimination, Congress clearly intended to extend protection beyond the simple fact of an employee's pregnancy to include `related medical conditions' such as nausea or potential miscarriage”) (citations and internal quotations omitted);

Ducharme

Crescent City Déjà Vu, L.L.C.,

406 F. Supp. 3d 548, 556 (E.D. La. 2019) (finding that “abortion is encompassed within the statutory text prohibiting adverse employment actions `because of or on the basis of pregnancy, childbirth, or related medical conditions' ”);

Donaldson

Am. Banco Corp., Inc.,

945 F. Supp. 1456, 1464 (D. Colo. 1996) (“It would make little sense to prohibit an employer from firing a woman during her pregnancy but permit the employer to terminate her the day after delivery if the reason for termination was that the woman became pregnant in the first place. The plain language of the statute does not require it, and common sense precludes it.”);

Pacourek

Inland Steel Co.,

858 F. Supp. 1393, 1402-03 (N.D. Ill. 1994) (PDA gives women “the right . . . to be financially and legally protected before, during, and after her pregnancy” and stating “[a]s a general matter, a woman's medical condition rendering her unable to become pregnant naturally is a medical condition related to pregnancy and childbirth for purposes of the Pregnancy Discrimination Act.”) (internal citations and quotations omitted);

Neessen

Arona Corp.,

2010 WL 1731652, at *7 (N.D. Iowa Apr. 30, 2010) (finding the plaintiff covered by the PDA where the defendant allegedly refused to hire her because she had recently been pregnant and given birth); 29 CFR part 1604 app. Questions 34-37 (1979); H.R. Rep. No. 95-1786, at 4 (1978),

as reprinted in

95th Cong., 2d Sess. 4, 1978 U.S.C.C.A.N. 4749, 4766 (“Because the bill applies to all situations in which women are `affected by pregnancy, childbirth, and related medical conditions,' its basic language covers decisions by women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.”); EEOC,

Commission Decision on Coverage of Contraception

(2000),

https://www.eeoc.gov/commission-decision-coverage-contraception

(“The PDA's prohibition on discrimination against women based on their ability to become pregnant thus necessarily includes a prohibition on discrimination related to a woman's use of contraceptives.”).

However, to be a “related medical condition” as applied to the specific employee or applicant in question, the condition must relate to pregnancy or childbirth. Some of the “related medical conditions” listed in the regulation are conditions that commonly, but not necessarily, relate to pregnancy or childbirth. If a worker has a condition that is listed in the regulation but, in their situation, it does not relate to pregnancy or childbirth, the condition shall not be covered under the PWFA. For example, if a worker has high blood pressure but that medical condition is not related to pregnancy or childbirth, a physical or mental condition related to the worker's high blood pressure is not eligible for an accommodation under the PWFA. Other civil rights statutes, such as the ADA, separately may entitle the worker to reasonable accommodation. If an employer has questions regarding whether a condition is related to pregnancy or childbirth, the employer may use the principles set out in the sections regarding the interactive process and supporting documentation.

“Related medical conditions” include conditions that existed before pregnancy or childbirth (and for which an individual was perhaps receiving reasonable accommodation under the ADA) but that may be or have been exacerbated by pregnancy or childbirth, such that additional or different accommodations are needed. For example, a worker who was using unpaid leave as an accommodation to attend treatment for anxiety may experience a worsening of anxiety due to pregnancy or childbirth and request an additional accommodation. A worker who received extra breaks to eat or drink due to Type 2 diabetes before pregnancy may need additional accommodations during pregnancy to monitor and manage the diabetes more closely and avoid or minimize adverse health consequences to the worker or their pregnancy. A worker may have high blood pressure that can be managed prior to the pregnancy, but once the worker is pregnant, the high blood pressure poses a risk to the pregnancy and the worker needs bed rest.

In these situations, an employee could request an additional accommodation under the ADA or an accommodation under the PWFA.

1636.3(c) Employee's Representative

Paragraph (c) of this section of the proposed rule defines “employee's representative” because the known limitation may be communicated to the covered entity by the employee or the employee's representative. Under the ADA, a representative may also make the request for an accommodation.

Thus, the proposed rule uses the same definition from the ADA and states that this term encompasses any representative of the employee or applicant, including a family member, friend, health care provider, or other representative.

Enforcement Guidance on Reasonable Accommodation, supra

note 44, Question 2.

1636.3(d) Communicated to the Employer

Paragraph (d) of this section of the proposed rule states that the PWFA's requirement that the known limitation be “communicate[d] to the employer” means to make known to the covered entity either by communicating with a supervisor, manager, someone who has supervisory authority for the employee (or the equivalent for an applicant), or human resources personnel, or by following the covered entity's policy to request an accommodation. This should not be a difficult task, and the employer should permit an employee or applicant to request an accommodation through multiple avenues and means. Given that many accommodations requested under the PWFA will be straightforward—like additional bathroom breaks or water—the Commission emphasizes the importance of employees being able to obtain accommodations by communicating with the people who assign them daily tasks and whom they would normally consult if they had questions or concerns. Employees should not be made to wait for a reasonable accommodation that is simple and imposes negligible cost, and is often likely temporary, because they asked the wrong supervisor. The Commission seeks comment on whether the definition of whom the employee or applicant may communicate with to start the reasonable accommodation process is appropriate or whether it should be expanded or limited with the understanding that the process should not be burdensome for the worker.

Paragraphs (d)(1) and (2) explain that a request for a reasonable accommodation under the PWFA, as with the ADA, does not need to be in writing or use any specific words or phrases. Instead, employees or applicants may request accommodations in conversation or may use another mode of communication to inform the employer.

A covered entity may choose to write a memorandum or letter confirming a request or may ask the employee or applicant to fill out a form or submit the request in written form. However, the covered entity cannot ignore or close the initial request because that initial request is sufficient to place the employer on notice.

Additionally, even though it is not required, an employee may choose email or other similar written means to submit a request for an accommodation to ensure clarity and create a record.

Id.

at Question 3.

Id.

Paragraph (d)(3) of this section of the proposed regulation sets out what an employee or applicant must communicate to the employer to request an accommodation under the PWFA. Such a request has two parts. First, the employee or applicant (or their representative) must identify the limitation that is the physical or mental condition and that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Second, the employee or applicant (or their representative) must indicate that they need an adjustment or change at work. As with the ADA, to request an accommodation, an employee or applicant may use plain language and need not mention the PWFA; use the phrases “reasonable accommodation,” “known limitation,” “qualified,” “essential function;” use any medical terminology; or use any other specific words or phrases.

Examples

Example 1636.3 #1: A pregnant employee tells her supervisor, “I'm having trouble getting to work at my scheduled starting time because of morning sickness.”

Morning sickness is a physical condition related to pregnancy that impedes a person's ability to eat and drink and requires access to a bathroom. The employee has identified a change needed at work (change in work schedule). This is a request for a reasonable accommodation under the PWFA.

Example 1636.3 #2: An employee who gave birth three months ago tells the person who assigns her work at the employment agency, “I need an hour off once a week for treatments to help with my back problem that started during my pregnancy.”

The back problem is a physical condition related to pregnancy, and the employee has identified a change needed at work (leave for medical appointments). This is a request for a reasonable accommodation under the PWFA.

Example 1636.3 #3: An employee tells a human resources specialist that they are worried about continuing to lift heavy boxes because they are concerned that it will harm their pregnancy.

The employee has a limitation because they have a need or a problem related to maintaining their health or the health of their pregnancy, the employee identified a change needed at work (assistance with lifting), and the employee communicated this information to the employer. This is a request for a reasonable accommodation under the PWFA.

Example 1636.3 #4: An employee's spouse, on the employee's behalf, requests light duty for the employee because the employee has a lifting restriction related to pregnancy; the employee's spouse uses the employer's established process for requesting a reasonable accommodation or light duty for the employee.

The lifting restriction is a physical condition related to the employee's pregnancy, and the employee's representative (their spouse) has identified a change needed at work (light duty). This is a request for a reasonable accommodation under the PWFA.

Example 1636.3 #5: An employee verbally informs a manager of her need for more frequent bathroom breaks, explains that the breaks are needed because the employee is pregnant, but does not complete the employer's online form for requesting accommodation.

The need to urinate more frequently is a physical condition related to pregnancy, and the employee has identified a change needed at work (additional bathroom breaks). An employee need not use specific words or any specific form or template to make a request for accommodation. This is a request for a reasonable accommodation under the PWFA.

Example 1636.3 #6: An employee tells a supervisor that she needs time off to recover from childbirth.

The need or a problem is related to maintaining the employee's health after childbirth, and the employee has identified a change needed at work (time off). This is a request for a reasonable accommodation under the PWFA.

See infra

§ 1636.3(h)

Particular Matters Regarding Leave as a Reasonable Accommodation

for a discussion of how requests for leave interact with situations where an employee has a right to leave under an employer's policy or another law;

see also

EEOC,

Employer-Provided Leave and the Americans with Disabilities Act,

Communication After an Employee Requests Leave (2016),

https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act

[hereinafter

Technical Assistance on Employer-Provided Leave

], for an explanation of this interaction and other helpful information about the interaction between the ADA and other laws requiring employers to provide leave to employees.

1636.3(e) Mitigating Measures

There may be steps that a worker can take to mitigate, or lessen, the effect of a known limitation. Paragraph (e) of this section of the proposed rule explains that, as with the ADA, the ameliorative, or positive, effects of mitigating

measures, as that term is defined in the Commission's ADA regulations, shall not be considered when determining if the employee has a limitation under the PWFA. However, again as under the ADA, the detrimental or non-ameliorative effects of mitigating measures, such as negative side effects of medication, the burden of following a particular treatment regimen, and complications that arise from surgery, may be considered when determining if an employee has a limitation under the PWFA.

29 CFR 1630.2(j)(1)(vi), (4)(ii);

see also

29 CFR part 1630 app. 1630.2(j)(1)(vi).

1636.3(f) Qualified Employee or Applicant

An employee or applicant must meet the definition of “qualified” in the PWFA in one of two ways.

The PWFA does not address prerequisites for a position; thus, whether an employee or applicant is qualified for the position in question is determined based on whether the employee or applicant can perform the essential functions of the position, with or without a reasonable accommodation, or based on the second part of the PWFA's definition of “qualified.” 42 U.S.C. 2000gg(6).

In paragraph (f) of this section, the proposed rule reiterates the statutory language that “qualified employee” means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position. Additionally, following the statute, the proposed rule also states that an employee or applicant shall be considered qualified if: (1) any inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated. The proposed rule relies on the ADA's definition of “qualified individual” for applicants and employees,

with necessary modifications to account for differences in the language of the statutes, as explained below.

42 U.S.C. 12111(8); 29 CFR 1630.2(m).

As with the ADA, the determination of whether an employee with a known limitation is qualified should be based on the capabilities of the employee at the time of the relevant employment decision and should not be based on speculation that the employee may become unable in the future to perform certain tasks, may require leave, or may cause increased health insurance premiums or workers' compensation costs.

29 CFR part 1630 app. 1630.2(m).

1636.3(f)(1) The First Part of PWFA's Definition of Qualified Employee or Applicant—With or Without Reasonable Accommodation

Under 42 U.S.C. 2000gg(6), employees are qualified if they can perform the essential functions of their jobs with or without reasonable accommodation, which is the same language as in the ADA and is interpreted accordingly in the proposed rule. “Reasonable” has the same meaning as under the ADA on this topic—an accommodation that “seems reasonable on its face,

i.e.,

ordinarily or in the run of cases,” “feasible,” or “plausible.”

Many workers seeking reasonable accommodations under the PWFA will meet this part of the definition. For example, a pregnant attorney who uses the firm's established telework program to work at home during morning sickness does not need an accommodation to perform the essential functions of the job and therefore is qualified without a reasonable accommodation. A pregnant cashier who needs a stool to perform the job will be qualified with the reasonable accommodation of a stool. A teacher recovering from childbirth who needs additional bathroom breaks will be qualified with a reasonable accommodation that allows such breaks.

US Airways, Inc.

Barnett,

535 U.S. 391, 401-02 (2002);

see, e.g., Shapiro

Twp. of Lakewood,

292 F.3d 356, 360 (3d Cir. 2002) (citing the definition from

Barnett

);

Osborne

Baxter Healthcare Corp.,

798 F.3d 1260, 1267 (10th Cir. 2015) (citing the definition from

Barnett

);

EEOC

United Airlines, Inc.,

693 F.3d 760, 762 (7th Cir. 2012) (citing the definition from

Barnett

);

see also Enforcement Guidance on Reasonable Accommodation, supra

note 44, at text accompanying nn.8-9 (citing the definition from

Barnett

Determining “Qualified” for the Reasonable Accommodation of Leave

The proposed rule explains that when determining whether an employee who needs leave as a reasonable accommodation meets the definition of “qualified,” the relevant inquiry is whether the employee would be able to perform the essential functions of the position, with or without reasonable accommodation (or, if not, if the inability to perform the essential function(s) is for a temporary period, the essential function(s) could be performed in the near future, and the inability to perform the essential function(s) can be reasonably accommodated), with the benefit of a period of intermittent leave, after a period of part-time work, or at the end of a period of leave or time off.

Thus, an employee who needs some form of leave to recover from a known limitation caused, for example, by childbirth or a miscarriage, can meet the definition of “qualified” because it is reasonable to conclude that once they return from the period of leave (or during the time they are working if it is intermittent leave) they will be able to perform the essential functions of the job, with or without additional reasonable accommodations or will be qualified under the second part of the PWFA definition that is described in the next subsection. Of course, if an employer can demonstrate that leave would pose an undue hardship, for example, due to the length, frequency, or unpredictable nature of the time off that was requested, it may lawfully deny the request.

If the employee will not be able to perform all of the essential functions at the end of the leave period, with or without accommodation, the employee may still be qualified under the second part of the PWFA's definition of qualified employee or applicant. 42 U.S.C. 2000gg(6).

As with the ADA, in determining whether leave under the PWFA causes an undue hardship, an employer may consider leave that the employee has already used under, for example, the FMLA.

See Technical Assistance on Employer-Provided Leave, supra

note 55, at Examples 17 and 18. For more information regarding leave as a reasonable accommodation,

see infra

§ 1636.3(h)

Particular Matters Regarding Leave as a Reasonable Accommodation.

1636.3(f)(2) The Second Part of PWFA's Definition of Qualified Employee or Applicant—Temporary Inability To Perform an Essential Function

The PWFA provides that an employee or applicant can meet the definition of “qualified” even if they cannot perform one or more essential functions of the position in question, provided three conditions are met: (1) the inability to perform an essential function(s) is for a temporary period; (2) the essential function(s) could be performed in the near future; and (3) the inability to perform the essential function(s) can be reasonably accommodated.

42 U.S.C. 2000gg(6).

Based on the overall structure and wording of the statute, the second part of the definition of “qualified” is relevant only when an employee or applicant cannot perform one or more essential functions of the job in question because of a known limitation under the PWFA. It is not relevant in any other circumstance. If the employee or applicant can perform the essential functions of the position with or without a reasonable accommodation, the first definition of “qualified” applies (able to do the job with or without a reasonable accommodation). For example, if a pregnant worker requests additional restroom breaks, the question of whether they are qualified is simply whether they can perform the essential

functions of their job with the reasonable accommodation of additional restroom breaks, and there is no need to apply the definitions of “temporary” or “in the near future,” or to determine whether the inability to perform an essential function can be reasonably accommodated (as no such inability exists).

By contrast, some examples of situations where the second definition may be relevant include: (1) a pregnant construction worker is told by their health care provider to avoid lifting more than 20 pounds during the second through ninth months of pregnancy, an essential function of the worker's job requires lifting more than 20 pounds, and there is not a reasonable accommodation that will allow the worker to perform that function without lifting more than 20 pounds; and (2) a pregnant police officer is unable to perform patrol duties during the third through ninth months of the pregnancy, patrol duties are an essential function of the job, and there is not a reasonable accommodation that will allow the worker to perform the essential functions of the patrol position.

Example 1636.3 #7/Qualified Employee: Launa has been working as a landscaper for two years, and her job regularly involves moving bags of soil that weigh 35-40 pounds. Launa becomes pregnant and lets her supervisor know that she has a lifting restriction of 20 pounds because of her pregnancy.

1. Known Limitation: Launa's lifting restriction is a physical condition related to pregnancy; Launa needs a change or adjustment at work; Launa has communicated this information to the employer.

2. Qualified:

a. Launa may be qualified with a reasonable accommodation of a device that helps with lifting.

b. If there is no device or other reasonable accommodation (or the device or other reasonable accommodation is too expensive or otherwise causes undue hardship for the employer) the employer must consider whether Launa meets the second definition of qualified: whether (1) the inability to perform the essential function is temporary, (2) Launa could perform the essential function in the near future, and (3) the inability to perform the essential function can be reasonably accommodated.

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 employee will not be qualified under the PWFA's second definition of qualified (because the inability to perform the essential function cannot be reasonably accommodated).

If there is no reasonable accommodation that allows the worker to continue to work, absent undue hardship, the employee may be qualified for leave as a reasonable accommodation if leave does not cause an undue hardship.

The PWFA does not provide definitions of the terms “temporary” or “in the near future,” nor does it give any additional explanation of the third prong of this definition. The Commission has provided definitions for these terms pursuant to its authority to issue regulations to implement the PWFA.

42 U.S.C. 2000gg-3.

1636.3(f)(2)(i) Temporary

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.' ” As explained below, how long it may take before the essential function can be performed is further limited by the definition of “in the near future.”

Temporary, Merriam-Webster.com

Dictionary, Merriam-Webster,

https://www.merriam-webster.com/dictionary/temporary

(“lasting for a limited time”) (last visited June 13, 2023). This definition is consistent with

Robert

Bd. of Cnty. Comm'rs' of Brown Cnty., Kan.,

691 F.3d 1211, 1218 (10th Cir. 2012) which was cited in the House Report in the discussion of this term. H.R. Rep. No. 117-27, at n.109) (when determining whether a request for leave could be “reasonable” under the ADA, defining “temporary” as that the essential function can be resumed).

1636.3(f)(2)(ii) In the Near Future

The proposed rule 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). In the Commission's view, to define “in the near future” as less than generally forty weeks—

i.e.,

the duration of a full-term pregnancy—would run counter to a central purpose of the PWFA of keeping pregnant workers in the workforce even when pregnancy, childbirth, or related medical conditions necessitate the reasonable accommodation of temporarily suspending the performance of one or more essential functions of a job.

Of course, if an accommodation is sought that requires the temporary suspension of an essential function, regardless of the amount of time sought, the employer may raise the undue hardship defense.

See

H.R. Rep. No. 117-27, pt. 1, at 5 (“When pregnant workers do not have access to reasonable workplace accommodations, they are often forced to choose between their financial security and a healthy pregnancy. Ensuring that pregnant workers have access to reasonable accommodations will promote the economic well-being of working mothers and their families and promote healthy pregnancies.”);

id.

at 22 (“When pregnant workers are not provided reasonable accommodations on the job, they are oftentimes forced to choose between economic security and their health or the health of their babies.”);

id.

at 24 (“Ensuring pregnant workers have reasonable accommodations helps ensure that pregnant workers remain healthy and earn an income when they need it the most.”);

id.

at 33 (“The PWFA is about ensuring that pregnant workers can stay safe and healthy on the job by being provided reasonable accommodations for pregnancy, childbirth, or related medical conditions. . . . The PWFA is one crucial step needed to reduce the disparities pregnant workers face by ensuring that pregnant women, and especially pregnant women of color, can remain safe and healthy at work.”).

The Commission also recognizes there may be physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions for which workers may seek the temporary suspension of an essential function when the worker is not currently pregnant. These conditions include pre-pregnancy limitations such as infertility, and post-pregnancy limitations such as acute cardio-vascular problems that are a consequence of the pregnancy. Although the length of pre- and post-partum physical or mental conditions will vary, the Commission proposes using “generally forty weeks” to measure whether the worker meets the “in the near future” requirement in the second definition of “qualified” in every situation where the reasonable accommodation sought under the PWFA is the temporary suspension of one or more essential functions.

The Commission's decision is based on several factors. First, in the first year after childbirth, severe health conditions, including ones that may require the temporary suspension of an essential function, are common.

According to a Centers for Disease Control and Prevention (CDC) study, 53% of pregnancy-related deaths occurred from one week to one year after delivery, and 30% occurred one and one half months to one year post-partum.

Likely for similar reasons,

thirty-five States and the District of Columbia provide twelve months of comprehensive Medicaid coverage after delivery, rather than sixty days.

Thus, allowing a worker to meet the second definition of “qualified” if they need an essential function temporarily suspended for generally forty weeks after return to work from childbirth (or for other reasons related to a known limitation) is a reasonable approximation of the period of time needed “in the near future” for conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions and therefore is consistent with the purpose of the PWFA. Finally, in the Commission's view, one definition for “in the near future” will allow for simplified administration.

Susan Trost et. al.,

Pregnancy-Related Deaths: Data from Maternal Mortality Review Committees in 36 U.S. States, 2017-2019,

Ctrs. for Disease Control & Prevention, U.S. Dep't of Health and Human Servs. (2022),

https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html.

Id.

More deaths occurred seven to 365 days after delivery than occurred during delivery itself (53.3% v. 21.6%). The leading causes of death were mental health conditions, hemorrhage, cardiac and coronary conditions, infection, thrombotic embolism, and cardiomyopathy. The leading causes of death varied by race and ethnicity. For Black individuals, cardiac and coronary conditions were the leading causes of death; for White individuals and Hispanic individuals, the leading cause was mental health conditions; for Asian individuals, the leading cause of death was hemorrhage. The leading

cause of death for Native American individuals was not reported due to small sample size.

Centers for Medicare & Medicaid Services, U.S. Dep't of Health and Human Servs.,

States that have Expanded Postpartum Coverage,

(last visited July 19, 2023)

https://www.medicaid.gov/medicaid/quality-of-care/downloads/image-maternity-care-expansion.png.

The Commission emphasizes that the definition in this section does not mean that the essential function(s) must always be suspended for forty weeks, or that if an employee seeks the temporary suspension of an essential function(s) for forty weeks it must be automatically granted. The actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires, and the covered entity always has available the defense that it would create an undue hardship. However, the mere fact that the temporary suspension of one or more essential functions is needed for any time period up to and including generally forty weeks will not, on its own, render a worker unqualified under the PWFA.

Further, the Commission recognizes that workers may need an essential function temporarily suspended because of pregnancy; may take leave to recover from childbirth; and, upon returning to work, may need the same essential function or a different one temporarily suspended due to a new or different physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. In keeping with the requirement that the determinations as to whether an individual is qualified under the PWFA should be made based on the situation at hand and the accommodation currently at issue,

the Commission proposes that the determination of “in the near future” would be made when the employee asks for each accommodation that requires the suspension of one or more essential functions. Thus, 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.

See

29 CFR part 1630 app. 1630.1 (“The determination of whether an individual with a disability is qualified is to be made at the time of the employment decision. The determination should be based on the capabilities of the individual with the disability at the time of the employment decision, and not be based on speculation that the employee may become unable in the future”).

In the Commission's view, restarting the calculation of “generally forty weeks” in the definition of “qualified” for “in the near future” is necessary because it would often be difficult, if not impossible, for a pregnant employee to predict what their limitations (if any) will be after pregnancy. Before childbirth, they may not know whether, and if so, for how long, they will have a known limitation or need an accommodation after giving birth. They also may not know whether the accommodation after childbirth will require the temporary suspension of an essential function, and, if so, for how long. All of these questions may be relevant under the PWFA's second definition of “qualified.”

Further, a rule that allows a covered entity to combine periods of the temporary suspension of essential function(s) during pregnancy and the post-partum period in order to determine if a worker is “qualified” would raise questions about, for example, whether the requests were close enough in time to be combined and whether the forty weeks should restart if a different essential function needs to be temporarily suspended. Determining where and how those lines should be drawn would require litigation regarding the term “qualified” and create confusion around implementation of the statute.

The Commission notes that leave related to recovery from pregnancy, childbirth, or related medical conditions does not count as time when an essential function is suspended and thus is not relevant for the second prong of the definition of qualified. If an individual needs leave as a reasonable accommodation under the PWFA or, indeed, any reasonable accommodation other than the temporary suspension of an essential function, only the first definition of “qualified” is relevant. In the case of leave, the question would be whether the individual, after returning from the requested period of leave, would be able to perform the essential functions of the position with or without reasonable accommodation (or, if not, if the inability to perform the essential function(s) is for a temporary period, the essential function(s) could be performed in the near future, and the inability to perform the essential function(s) can be reasonably accommodated). Furthermore, for some workers, leave to recover from childbirth will not require a reasonable accommodation because they have a right to leave under Federal, State, or local law or as part of an employer policy. Thus, for the purpose of determining whether the employee is qualified under the second prong of “qualified” regarding the suspension of an essential function, the Commission does not intend for employers or workers to count time on leave for recovery from childbirth.

For additional information on how leave should be addressed under the PWFA,

see supra With or Without Reasonable Accommodation—Leave

and

infra

§ 1636.3(h)

Particular Matters Regarding Leave as a Reasonable Accommodation.

The Commission does not believe that its definition of “in the near future” will cause excessive difficulties for covered entities because the “generally forty weeks” time period is only to determine if the worker can be considered qualified under this definition. If the temporary suspension of the essential function causes undue hardship or (as explained in the next section) the temporary suspension of the essential function cannot be reasonably accommodated, the employer does not have to provide the reasonable accommodation.

The Commission seeks comment on the proposed definition of “in the near future” including (a) whether the definition of “in the near future” post-pregnancy should be one year rather than generally forty weeks; (b) whether periods of temporary suspension of an essential function during pregnancy and post-pregnancy should be combined, and, if so, how should that be done and what rule should be adopted to ensure that a pregnant worker is not required to predict what limitations they will experience after pregnancy given that a pregnant worker will not generally be

able to do so; and (c) whether there are alternative approaches that would more effectively ensure that workers are able to seek the accommodations they need while limiting the burden on covered entities.

1636.3(f)(2)(iii) Can Be Reasonably Accommodated

The proposed rule also explains that to satisfy the PWFA's second definition of “qualified,” the covered entity must be able to reasonably accommodate the inability to perform one or more essential functions without undue hardship. For some positions, this may mean that one or more essential functions are temporarily suspended, with or without reassignment to someone else, and the employee continues to perform the remaining functions of the job. For other jobs, some of the essential functions may be temporarily suspended, with or without reassignment to someone else, and the employee may be assigned other tasks to replace them. In yet other situations, one or more essential functions may be temporarily suspended, with or without reassignment to someone else, and the employee may perform the functions of a different job to which the employer temporarily transfers or assigns them, or the employee may participate in the employer's light or modified duty program.

Throughout this process, as with other reasonable accommodation requests, an employer may need to consider more than one alternative to identify a reasonable accommodation that does not pose an undue hardship. Depending on how the temporary suspension is accomplished, the covered entity may have to prorate or change a performance or production standard so that the accommodation is effective.

See

H.R. Rep. No. 117-27, pt. 1, at 27 (“the temporary inability to perform essential functions due to pregnancy, childbirth, or related medical conditions does not render a worker “unqualified. . . . there may be a need for a pregnant worker to temporarily perform other tasks or otherwise be excused from performing essential functions before fully returning to her position once she is able.”).

Enforcement Guidance on Reasonable Accommodation, supra

note 44, at Question 19.

Example 1636.3 #8: One month into a pregnancy, Akira, a worker in a paint manufacturing plant, is told by her health care provider that she should avoid certain chemicals for the remainder of the pregnancy. One of the essential functions of this job involves regular exposure to these chemicals. Akira talks to her supervisor, explains her limitation, and asks that she be allowed to switch duties with another worker whose job does not require the same exposure but otherwise involves the same functions. There are numerous other tasks that Akira could accomplish while not being exposed to the chemicals.

1. Known limitation: Akira has a need or a problem relating to maintaining the health of her pregnancy, which is a physical condition related to pregnancy; Akira needs a change or adjustment at work; Akira has communicated this information to her employer.

2. Qualified: Akira needs the temporary suspension of an essential function.

a. Akira's inability to perform the essential function is temporary.

b. Akira could perform the essential functions of her job in the near future because Akira needs an essential function suspended for less than forty weeks.

c. Akira's inability to perform the essential function may be reasonably accommodated. The employer can suspend the essential function that requires her to work with the chemicals and have her do the remainder of her job. Alternatively, Akira can perform the other tasks that are referenced or switch duties with another worker. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #9: Two months into a pregnancy, Lydia, a delivery driver, is told by her health care provider that she should not lift more than 20 pounds. Lydia routinely has to lift 30-40 pounds as part of the job. She discusses the limitation with her employer. The employer is unable to provide Lydia with assistance in lifting packages, and Lydia requests placement in the employer's light duty program, which is used for drivers who have on-the-job injuries.

1. Known limitation: Lydia's lifting restriction is a physical condition related to pregnancy; she needs a change in work conditions; and she has communicated this information to the employer.

2. Qualified: Lydia needs the temporary suspension of an essential function.

a. Lydia's inability to perform the essential function is temporary.

b. Lydia could perform the essential functions of her job in the near future because Lydia needs an essential function suspended for less than forty weeks.

c. Lydia's need to temporarily suspend an essential function of her job may be reasonably accommodated through the existing light duty program. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship.

1636.3(g) Essential Functions

The proposed rule adopts the Commission's definition of “essential function” contained in the regulations implementing the ADA regulations: “the fundamental job duties of the employment position the individual . . . holds or desires,” excluding “the marginal functions of the position.”

Thus, in determining whether something is an essential function, the first consideration is whether employees in the position actually are required to perform the function, and relevant evidence includes both the position description and information from incumbents (including the employee requesting the accommodation) about what they actually do on the job.

29 CFR 1630.2(n).

29 CFR 1630.2(n); 29 CFR part 1630 app. 1630.2(n).

The Commission seeks comments on whether there are additional factors that should be considered in determining whether a function is essential for purposes of the PWFA.

For example, given that many, if not all, known limitations under the PWFA will be temporary, should the definition of “essential function” under the PWFA consider whether the function is essential to be performed by the worker in the limited time for which an accommodation will be needed.

See

H.R. Rep. No. 117-27, pt. 1, at 28 (stating that the factors adopted by the EEOC to determine essential functions under the ADA are “instructive, although not determinative” for the PWFA).

1636.3(h) Reasonable Accommodation—Generally

42 U.S.C. 2000gg(7) states that the term “reasonable accommodation” has the meaning given to it in section 101 of the ADA and shall be construed as it is construed under the ADA and the Commission's regulations implementing the PWFA. As stated in the Appendix to the ADA Regulations, “[t]he obligation to make reasonable accommodation is a form of non-discrimination” and is therefore “best understood as a means by which barriers to the equal employment opportunity [of an employee or applicant with a known limitation under the PWFA] are removed or alleviated.”

A modification or adjustment is reasonable if it “seems reasonable on its face,

i.e.,

ordinarily or in the run of cases;” this means it is “reasonable” if it appears to be “feasible” or “plausible.”

An accommodation also must be effective in meeting the needs of the employee or applicant, meaning it removes a workplace barrier and provides the individual with equal opportunity.

29 CFR part 1630 app. 1630.9.

See supra

note 60.

Enforcement Guidance on Reasonable Accommodation, supra

note 44, at Question 9 and 29 CFR part 1630 app. 1630.9 (providing that a reasonable accommodation “should provide the individual with a disability with an equal employment opportunity. Equal employment opportunity means an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.”).

Under the PWFA, a reasonable accommodation has the same definition

as under the ADA.

Therefore, like the ADA, reasonable accommodations under the PWFA include modifications or adjustments to the job application process that enable a qualified applicant with a known limitation to be considered for the position; modifications or adjustments to the work environment, or to the manner or circumstances under which the position is done to allow a person with a known limitation to perform the essential functions of the job; and modifications or adjustments that enable an employee with a known limitation to enjoy equal benefits and privileges of employment.

Because the PWFA also provides for reasonable accommodations when a worker temporarily cannot perform one or more essential functions of a position but could do so in the near future, reasonable accommodation under the PWFA also includes modifications or adjustments that allow an employee with a known limitation to temporarily suspend one or more essential functions of the position.

42 U.S.C. 2000gg(7).

29 CFR 1630.2(o)(1)(i-iii). The requirement for reasonable accommodations that provide for equal benefits and privileges is shorthand for the requirement that an accommodation should provide the individual with an equal employment opportunity (29 CFR part 1630 app. 1630.9). This requirement stems from the ADA's prohibition on discrimination in “terms, conditions, and privileges of employment.” 42 U.S.C. 12112(a). The PWFA prohibits adverse action in the terms, conditions, or privileges of employment against a qualified employee for using or requesting an accommodation and Title VII—which applies to workers affected by pregnancy, childbirth, or related medical conditions—prohibits discrimination in the terms, conditions, and privileges of employment. 42 U.S.C. 2000e-2(a)(1). Based on the text of the PWFA, Title VII, and the requirement under the PWFA that reasonable accommodation has the same definition as in the ADA, the same requirement applies. Thus, a reasonable accommodation under the PWFA includes a change to allow employees affected by pregnancy, childbirth, or related medical conditions. nondiscrimination in the terms, conditions, or privileges of employment or, in shorthand, to enjoy equal benefits and privileges. S

ee also

EEOC Compliance Manual Section 613

Terms, Conditions, and Privileges of Employment,

613.1(a) (1982) (“terms, conditions, and privileges of employment” are “to be read in the broadest possible terms” and “a distinction is rarely made between terms of employment, conditions of employment, or privileges of employment”),

https://www.eeoc.gov/laws/guidance/cm-613-terms-conditions-and-privileges-employment#:~:text=The%20following%20employment%20practices%20or%20activities%20which%20are,or%20activity%20is%20considered%20in%20its%20broad%20sense

[hereinafter

Compliance Manual on Terms, Conditions, and Privileges of Employment

Additions to the Definition of Reasonable Accommodation

Because 42 U.S.C. 2000gg(7) states that “reasonable accommodation” should have the meaning of the term under the ADA and the regulations set forth in for the PWFA, the proposed rule takes the definition of “reasonable accommodation” provided in the regulations implementing the ADA

and makes five additions to apply it in the context of the PWFA.

29 CFR 1630.2(o).

First, the proposed rule replaces references to “individual with a disability” and similar terms with “employee with a known limitation” and similar terms.

The proposed rule also deletes examples of reasonable accommodation that are unlikely to be relevant to the PWFA,

i.e.,

“provision of qualified readers or interpreters.” A person covered by the PWFA who is blind or deaf who needs these reasonable accommodations because of their disability may be entitled to them under the ADA. Nothing added or deleted from the PWFA's proposed list of reasonable accommodations is intended to alter the ADA's standards. Nor does the exclusion of these reasonable accommodations mean that they could not be required under the PWFA in appropriate circumstances, such as when pregnancy exacerbates a pre-existing medical condition.

Second, the proposed rule includes an addition to the ADA's definition of reasonable accommodation that is required by the PWFA. As explained in the discussion of the term qualified employee above, the PWFA provides that the temporary suspension of one or more essential functions is a potential reasonable accommodation by defining “qualified employee” to include an employee who cannot perform one or more essential functions of the position for a temporary period, provided they could do so in the near future, and the inability to perform the essential function(s) can be reasonably accommodated without undue hardship. The proposed rule illustrates the implications, meaning, and application of this requirement.

Third, the proposed rule incorporates certain examples of accommodations long recognized by the EEOC as reasonable accommodations for individuals with disabilities but not explicitly included in the non-exhaustive examples of reasonable accommodation in the ADA regulation. These are discussed below in § 1636.3(i).

Fourth, in addition to noting paid leave (whether accrued, short-term disability, or another type of employer benefit) and unpaid leave as examples of reasonable accommodations, the proposed rule states that either type of leave to recover from childbirth is an example of a potential reasonable accommodation for pregnancy, childbirth, or related medical conditions. This is explained in more detail below.

Finally, the proposed rule provides details about potential reasonable accommodations related to lactation.

Alleviating Increased Pain or Risk to Health Due to the Known Limitation

Under the PWFA and the proposed rule, a worker may seek a reasonable accommodation in order to alleviate increased pain or increased risk to health that is attributable to the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that has been communicated to the employer (the known limitation).

When dealing with requests for accommodation concerning the alleviation of increased pain or increased risk to health associated with a known limitation, the goal is to provide an accommodation that allows the worker to alleviate the identified increase in pain or risk to health.

Depending on the facts of the case, the accommodation sought will allow the employee to apply for the position, to perform the essential functions of the job, to enjoy equal benefits and privileges of employment, or allow the temporary suspension of an essential function of the job.

Example 1636.3 #10: Celia is a factory worker whose job requires her to move boxes that weigh 50 pounds regularly. Prior to her pregnancy, Celia occasionally felt pain in her knee when she walked for extended periods of time. After returning to work after having a cesarean section, Celia's health care provider says she should limit the tasks that require moving boxes to no more than 30 pounds for three months because heavier lifting could increase the risk to her health and recovery. Celia can seek an accommodation that would help her lift between 30 and 50 pounds because it is needed for her known limitation related to childbirth. However, the PWFA would not require the employer to provide an accommodation regarding Celia's knee pain because that situation is not attributable to Celia's known limitation, unless there is evidence that the pain in walking was exacerbated by Celia's pregnancy, childbirth, or related medical conditions. The employer may have accommodation responsibilities regarding Celia's knee pain under the ADA.

Example 1636.3 #11: Lucille has opioid use disorder that she controls with medication. After giving birth, she experiences postpartum depression. As a result, she is put on an additional medication that she must take with food, and she starts therapy with a new provider. Under the PWFA, Lucille requests that she be allowed to take breaks to eat when she needs to take her medication and that she be allowed to use intermittent leave to attend her therapy appointments. Under the PWFA, the employer is required to provide the requested accommodations (or other reasonable ones) absent undue hardship. The employer does not have to provide an accommodation for Lucille's underlying opioid use disorder under the

PWFA, although it may have accommodation responsibilities under the ADA.

Example 1636.3 #12: Jackie's position at a fabrication plant involves working with certain chemicals, which Jackie thinks is the reason she has a nagging cough and chapped skin on her hands. Once she becomes pregnant, Jackie seeks the accommodation of a temporary suspension of an essential function of working with the chemicals because the chemicals create an increased risk to her pregnancy. The employer provides the accommodation. After Jackie gives birth and returns to work, she no longer has any known limitations. Thus, she can be assigned to work with the chemicals again even if she would rather not do that work, because the PWFA only requires an employer to provide an accommodation that is needed due to the known limitation related to pregnancy, childbirth, or related medical conditions. Jackie's employer may also have accommodation responsibilities under the ADA.

Example 1636.3 #13: Margaret is a retail worker who is pregnant. Because of her pregnancy, Margaret feels pain in her back and legs when she has to move stacks of clothing from one area to the other, which is one of the essential functions of her position. She can still manage to move the clothes, but, because of the pain, she requests a cart to use when she is moving the garments. Under the PWFA, the employer is required to provide the requested accommodation (or another reasonable accommodation), absent undue hardship, because doing so accommodates Margaret's limitation arising out of her pregnancy. If Margaret also has wrist pain that is not caused or exacerbated by the pregnancy, Margaret's employer is under no obligation under the PWFA to provide an accommodation for the wrist pain because it is not related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. However, the employer may have accommodation responsibilities regarding Margaret's wrist pain under the ADA.

Particular Matters Regarding Leave as a Reasonable Accommodation

The Commission has long recognized the use of all forms of paid and unpaid leave as a potential reasonable accommodation under the ADA, including for part-time schedules.

Given Congress' extensive use of ADA terms and provisions in the PWFA—including specifically the definition of “reasonable accommodation”—the Commission proposes to include these potential reasonable accommodations in this proposal's definition of reasonable accommodation.

See

29 CFR 1630.2(o)(2)(ii); 29 CFR part 1630 app. 1630.2(o);

Enforcement Guidance on Reasonable Accommodation, supra

note 44, at text accompanying nn.48-49.

Leave, including intermittent leave, may be a reasonable accommodation even if the covered entity does not offer it as an employee benefit.

If an employee requests leave as an accommodation or if there is no other reasonable accommodation that does not cause an undue hardship, the covered entity must consider providing leave as a reasonable accommodation under the PWFA, even if the employee is not eligible for leave under the employer's leave policy or the employee has exhausted the leave the covered entity provides as a benefit (including leave exhausted under a workers' compensation program, the FMLA, or similar State or local laws).

See Technical Assistance on Employer-Provided Leave, supra

note 55, at text above Example 4.

Id.

Of course, if an employee has a right to leave under the FMLA, an employer policy, or a State or local law, the employee is entitled to leave regardless of whether they request leave as a reasonable accommodation. An employee who needs leave beyond what they are entitled to under those laws or policies will need to request leave as a reasonable accommodation.

The proposed rule also provides that leave to recover from childbirth, miscarriage, stillbirth, or other related conditions is a potential reasonable accommodation (absent undue hardship).

The proposed rule further explains that workers protected by the PWFA must be permitted to choose whether to use paid leave (whether accrued, as part of a short-term disability program, or as part of any other employee benefit) or unpaid leave to the same extent that the covered entity allows employees using leave for reasons unrelated to pregnancy, childbirth, or related medical conditions to choose between these various types of leave.

However, as under the ADA, an employer is not required to provide additional paid leave under the PWFA beyond the amount to which the employee is otherwise entitled.

H.R. Rep. No. 117-27, pt. 1, at 29 (noting that “leave is one possible accommodation under the PWFA, including time off to recover from delivery”).

A failure to allow a worker affected by pregnancy, childbirth, or related medical conditions to use paid or unpaid leave to the same extent that the covered entity allows employees using leave for reasons unrelated to pregnancy, childbirth, or related medical conditions to do so may be a violation of Title VII as well.

The Commission recognizes that there may be situations where an employer accommodates a pregnant employee with a stool or additional breaks or temporarily suspends one or more essential functions under the PWFA, and then the employee requests leave to recover from childbirth. In these situations, the covered entity should consider the request for the reasonable accommodation of leave to recover from childbirth in the same manner that it would any other request for leave as a reasonable accommodation. This requires first considering whether the employee will be able to perform the essential functions of the position with or without a reasonable accommodation after the period of leave, or, if not, whether, after the period of leave, the employee will meet the second definition of “qualified” under the PWFA.

Under the ADA regulations, a reasonable accommodation cannot excuse an employee from complying with valid production standards that are applied uniformly to all employees.

However, for example, when the reasonable accommodation is leave, the employee may not be able to meet a production standard during the period of leave or, depending on the length of the leave, meet that standard for a defined period of time (

e.g.,

the production standard measures production in one year and the employee was on leave for four months). Thus, if the reasonable accommodation is leave, the production standard may need to be prorated to account for the reduced amount of time the employee worked.

For example, if a call center employee with a known limitation requests and is granted two hours of leave in the afternoon for rest, the employee's required number of calls may need to be reduced proportionately, as could the employee's pay. Alternatively, the accommodation could allow for the employee to make up the time at a different time during the day so that the employee's production standards and pay would not be reduced.

Enforcement Guidance on Reasonable Accommodation, supra

note 44, at text accompanying n.14.

Id.

at Question 19.

As under the ADA, an employee with a known limitation who is granted leave as a reasonable accommodation under the PWFA is entitled to return to their same position unless the employer demonstrates that holding open the position would impose an undue hardship.

Likewise, an employer must continue an employee's health insurance benefits during their leave period to the extent that it does so for other employees in a similar leave status. When the employee is ready to return to work, the employer must allow the individual to return to the same

position (assuming that there was no undue hardship in holding it open) if the employee is still qualified (

i.e.,

the employee can perform the essential functions of the position with or without reasonable accommodation or if the employee meets the PWFA's second definition of qualified).

See id.

at Question 18. As under the ADA, if an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue their leave for a specific period of time and then, at the conclusion of the leave, can be returned to this new position.

Id.

at Question 21.

Under the PWFA, an employer may deny a reasonable accommodation if it causes an undue hardship—a significant difficulty or expense. Thus, if an employer can demonstrate that the leave requested as a reasonable accommodation poses an undue hardship—for example, because of its length, frequency, or unpredictable nature, or because of another factor—it may lawfully deny the requested leave under the PWFA.

Ensuring That Workers Are Not Penalized for Using Reasonable Accommodations

Covered entities making reasonable accommodations must ensure that their ordinary workplace policies or practices do not operate to penalize employees for utilizing such accommodations. For example, when a reasonable accommodation involves a pause in work—such as a break, a part-time or other reduced work schedule, or leave—an employee cannot be penalized for failing to perform work during such a non-work period. Similarly, policies that monitor workers for time on task (whether through automated means or otherwise) and penalize them for being off task may need to be modified to avoid imposing penalties for non-work periods that the employee was granted as a reasonable accommodation. Likewise, if an accommodation under the PWFA involves the temporary suspension of an essential function of the position, a covered entity may not penalize an employee for not performing the essential function that has been temporarily suspended.

Penalizing an employee in these situations would be retaliation for the employee's use of a reasonable accommodation to which they are entitled under the law.

It would also render the accommodation ineffective, thus making the covered entity liable for failing to provide a reasonable accommodation.

The Commission seeks comment on whether there are other situations where this may apply and whether examples would be helpful to illustrate this point.

Id.

at Question 19;

see

also 2000gg-1(5), 2000gg-2(f) and the accompanying regulations.

Id.

at Question 19.

Personal Use

The obligation to provide reasonable accommodation under the PWFA, like the ADA, does not extend to the provision of adjustments or modifications that are primarily for the personal benefit of the individual with a known limitation. However, adjustments or modifications that might otherwise be considered personal may be required as reasonable accommodations “where such items are specifically designed or required to meet job-related rather than personal needs.”

29 CFR part 1630 app. 1630.9.

For example, if a warehouse employee is pregnant and is having difficulty sleeping, the PWFA would not require as a reasonable accommodation for the employer to provide a pregnancy pillow and a white noise machine to help with sleeping because they are strictly for an employee's personal use. However, allowing the employee some flexibility in start times for the workday may be a reasonable accommodation because it modifies an employment-related policy. In a different context, if the employee who is having trouble sleeping works at a job that involves sleeping between shifts on-site, such as a job as a firefighter, sailor, emergency responder, health care worker, or truck driver, a pregnancy pillow may be a reasonable accommodation because the employee is having a difficult time sleeping because of the pregnancy, the employer is providing the place and items necessary for sleeping, and the employee needs a modification of the items and place.

All Services and Programs

Under the PWFA, as under the ADA, the obligation to make reasonable accommodation applies to all services and programs and to all non-work facilities provided or maintained by an employer for use by its employees so that employees or applicants with known limitations can enjoy equal benefits and privileges of employment.

Accordingly, the obligation to provide reasonable accommodation, barring undue hardship, includes providing access to employer-sponsored placement or counseling services, such as employee assistance programs, and to employer-provided cafeterias, lounges, gymnasiums, auditoriums, transportation, and to similar facilities, services, or programs.

Id.

Interim Reasonable Accommodation

Providing an interim reasonable accommodation is a best practice under the PWFA in certain circumstances.

100

An employee may have an urgent need for a reasonable accommodation due to the nature or sudden onset of a known limitation under the PWFA. For example, a pregnant employee may experience vaginal bleeding, which may indicate a more serious problem. Upon discovering the bleeding, the employee may ask for immediate leave to go see their health care provider. The employee then may need additional leave, telework, rest breaks, or a later start time, beginning immediately. In this situation, a covered entity, as a best practice, should consider providing an interim reasonable accommodation that meets the employee's needs while the interactive process is conducted. Similarly, an employee recovering from childbirth may ask for the reasonable accommodation of more frequent or longer bathroom breaks, and the covered entity should consider meeting that need, as an interim reasonable accommodation, before the conclusion of the interactive process. Covered entities that do not provide interim reasonable accommodations are reminded that an unnecessary delay in the interactive process or providing a reasonable accommodation may lead to liability under 42 U.S.C. 2000gg-1(1) even if the reasonable accommodation is eventually granted, as explained in detail in § 1636.4(a) of the proposed regulation.

100

The same is true under the ADA. EEOC,

Final Report on Best Practices for Employment of People with Disabilities in the State Government

II.B.1 (2005),

http://www.eeoc.gov/laws/guidance/final-report-best-practices-employment-people-disabilities-state-government

[hereinafter

Best Practices State Government

] (noting that “[t]emporary accommodations may enable a worker who has made a request for reasonable accommodation under the ADA to continue working while a final determination of whether to grant or deny the accommodation is being made”).

1636.3(i) Reasonable Accommodation—Examples

The definition of “reasonable accommodation” in the proposed PWFA rule incorporates certain accommodations long recognized by the EEOC as reasonable accommodations but not explicitly included in the non-exhaustive examples of reasonable accommodations in the ADA regulation. The inclusion of these possible reasonable accommodations in the proposed regulation also helps to meet the requirement in 42 U.S.C. 2000gg-3 that EEOC's regulations provide examples of reasonable accommodations addressing known

limitations related to pregnancy, childbirth, or related medical conditions. The Commission notes that an employee or applicant may need more than one of these accommodations at the same time or as a pregnancy progresses.

• Frequent breaks. The EEOC has long construed the ADA to require additional breaks as a reasonable accommodation, absent undue hardship.

101

For example, a pregnant employee might need more frequent breaks due to shortness of breath; an employee recovering from childbirth might need more frequent restroom breaks or breaks due to fatigue because of recovery from childbirth; or an employee who is lactating might need more frequent breaks for water or food.

102

101

Enforcement Guidance on Reasonable Accommodation, supra

note 44, at Question 22;

see also

H.R. Rep. No. 117-27, pt. 1, at 11, 22, 29.

• Schedule changes, part-time work, and paid and unpaid leave. The Appendix to the ADA Regulations explains that permitting the use of paid leave (whether accrued, as part of a short-term disability program, or as part of any other employee benefit) or providing additional unpaid leave is a potential reasonable accommodation under the ADA.

104

Additionally, the Appendix recognizes that leave for medical treatment can be a reasonable accommodation.

105

By way of example, an employee could need a schedule change to attend a round of IVF appointments to get pregnant; a part-time schedule to address fatigue during pregnancy; or additional unpaid leave for recovery from childbirth, medical treatment, post-partum treatment or recuperation related to a cesarean section, episiotomy, infection, depression, thyroiditis, or preeclampsia.

104

29 CFR part 1630 app. 1630.2(o);

see also Technical Assistance on Employer-Provided Leave, supra

note 55. Additionally, an employer prohibiting a worker from using accrued leave for pregnancy-related reasons or while allowing other workers to use leave for similar reasons may also violate Title VII.

105

29 CFR part 1630 app. 1630.2(o).

• Telework. Telework or “work from home” has been recognized by the EEOC as a potential reasonable accommodation.

106

Telework could be used to accommodate, for example, a period of bed rest or a mobility impairment.

106

See, e.g., Enforcement Guidance on Reasonable Accommodation, supra

note 44, at Question 34.

• Parking. Providing reserved parking spaces if the employee is otherwise entitled to use employer-provided parking may be reasonable accommodation to assist a worker who is experiencing fatigue or limited mobility because of pregnancy, childbirth, or related medical conditions.

• Light duty. Assignment to light duty or placement in a light duty program has been recognized by the EEOC as a potential reasonable accommodation under the ADA, even if the employer's light duty positions are normally reserved for those injured on-the-job and the person with a disability seeking a light duty position does not have a disability stemming from an on-the-job injury.

107

EEOC,

Enforcement Guidance: Workers' Compensation, supra

note 20, at Question 28;

see also

168 Cong. Rec. S7,048 (daily ed. Dec. 8, 2022) (statement of Sen. Robert P. Casey, Jr.) (“What are other types of reasonable accommodations that pregnant workers may request? Light duty is a common example.”);

id.

at S7,049 (statement of Sen. Patty Murray) (noting that workers need accommodations because “their doctors say they need to avoid heavy lifting”); H.R. Rep.117-27, pt. 1, at 14-17 (discussing

Young

United Parcel Serv., Inc.,

575 U.S. 206 (2015), a case involving light duty for pregnant workers).

• Making existing facilities accessible or modifying the work environment.

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Examples of reasonable accommodations might include allowing access to an elevator not normally used by employees; moving the employee's workspace closer to a bathroom; providing a fan to regulate temperature; or moving a pregnant or lactating employee to a different workspace to avoid exposure to chemical fumes. As noted in the proposed regulation, this also may include modifications of the work environment to allow an employee to pump breast milk at work.

109

108

29 CFR 1630.2(o)(1)(ii); (2)(i).

109

On December 29, 2022, President Biden signed the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) (Pub. L. 117-328 Division KK). The law extended coverage of the Fair Labor Standards Act's (FLSA) protections for nursing employees to apply to most workers. The FLSA provides most workers with the right to break time and a place to pump breast milk at work. 29 U.S.C. 218d; U.S. Dep't of Lab., Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at Work (Jan. 2023),

https://www.dol.gov/agencies/whd/pump-at-work.2023

https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers.

Employees who are not covered by the PUMP Act or employees who seek to pump longer than one year may seek reasonable accommodations regarding pumping under the PWFA. Further, employees who are covered by the PUMP Act may seek additional related accommodations, such as access to a sink, a refrigerator, and electricity.

See, e.g.,

U.S. Dep't of Lab.,

Notice on Reasonable Break Time for Nursing Mothers,

75 FR 80073, 80075-76 (Dec. 21, 2010) (discussing space requirements and noting factors such as the location of the area for pumping compared to the employee's workspace, the availability of a sink and running water, the location of a refrigerator to store milk, and electricity may affect the amount break time needed). The PUMP Act is enforced by the Department of Labor, not the EEOC.

• Job restructuring.

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Job restructuring might involve, for example, removing a marginal function that required a pregnant employee to climb a ladder or occasionally retrieve boxes from a supply closet.

110

29 CFR 1630.2 (o)(2)(ii).

• Temporarily suspending one or more essential functions. For some positions, this may mean that one or more essential functions are temporarily suspended, and the employee continues to perform the remaining functions of the job. For others, the essential function(s) will be temporarily suspended, and the employee may be assigned other tasks. For others, the essential function(s) will be temporarily suspended, and the employee may perform the functions of a different job to which the employer temporarily transfers or assigns them. For yet others, the essential function(s) will be temporarily suspended, and the employee will participate in the employer's light or modified duty program.

• Acquiring or modifying equipment, uniforms, or devices.

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Examples of reasonable accommodations might include providing uniforms and equipment, including safety equipment, that account for changes in body size during and after pregnancy, including during lactation; providing devices to assist with mobility, lifting, carrying, reaching, and bending; or providing an ergonomic keyboard to accommodate pregnancy-related hand swelling or tendonitis.

111

Id.

• Adjusting or modifying examinations or policies.

112

Examples of reasonable accommodations include

allowing workers with a known limitation to postpone an examination that requires physical exertion. Adjustments to policies also could include increasing the time or frequency of breaks to eat or drink or to use the restroom.

112

Id.

The proposed PWFA rule includes these additional examples in the regulatory language.

Below the Commission provides some examples of types of reasonable accommodations and how they can be analyzed. The Commission seeks comment on whether more examples would be helpful and, if so, the types of conditions and accommodations that should be the focus of the additional examples.

Examples of Types of Reasonable Accommodations

Example 1636.3 #14/Telework: Gabriela, a billing specialist in a doctor's office, experiences nausea and vomiting beginning in her first trimester of pregnancy. Her doctor believes the nausea and vomiting will pass within a couple of months. Because the nausea makes commuting extremely difficult, Gabriela makes a verbal request to her manager stating she has nausea and vomiting due to her pregnancy and requests that she be permitted to work from home for the next two months so that she can avoid the difficulty of commuting. The billing work can be done from her home or in the office.

1. Known limitation: Gabriela's nausea and vomiting is a physical condition related to pregnancy; Gabriela needs an adjustment or change at work; Gabriela has communicated the information to the employer.

2. Qualified: Gabriela can do the billing work with the reasonable accommodation of telework.

3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #15/Temporary Suspension of an Essential Function: Nisha, a nurse assistant working in a large elder care facility, is advised in the fourth month of pregnancy to stop lifting more than 25 pounds for the rest of the pregnancy. One of the essential functions of the job is to assist patients in dressing and bathing, and moving them from or to their beds, tasks that typically require lifting more than 25 pounds. Nisha sends an email to human resources asking that she not be required to lift more than 25 pounds for the remainder of her pregnancy and requesting a place in the established light duty program under which workers who are hurt on the job take on different duties while coworkers take on their temporarily suspended duties.

1. Known limitation: Nisha's lifting restriction is a physical condition related to pregnancy; Nisha needs an adjustment or change at work; Nisha has communicated that information to the employer.

2. Qualified: Nisha is asking for the suspension of an essential function. The suspension is temporary, and Nisha could perform the essential functions of the job “in the near future” (generally within forty weeks). It appears that the inability to perform the function can be reasonably accommodated through its temporary suspension and Nisha's placement in the established light duty program.

3. The employer must grant the reasonable accommodation of temporarily suspending the essential function, or another reasonable accommodation, absent undue hardship. As part of the temporary suspension, the employer may assign Nisha to the light duty program.

Example 1636.3 #16: Same facts as above but the employer establishes the light duty program is limited to 10 slots and that all 10 slots are filled for the next 6 months. In these circumstances, the employer must consider other possible reasonable accommodations, such as the temporary suspension of an essential function without assigning Nisha to the light duty program, or job restructuring outside of the established light duty program. If such accommodations cannot be provided without undue hardship, then the employer must consider a temporary reassignment to a vacant position for which Nisha is qualified, with or without reasonable accommodation. For example, if the employer has a vacant position that does not require lifting patients which Nisha could perform with or without a reasonable accommodation, the employer must offer her the temporary reassignment as a reasonable accommodation, absent undue hardship.

Example 1636.3 #17/Assistance with Performing an Essential Function: Mei, a warehouse worker, requests via her employer's online accommodation process that a dolly be provided to assist her in moving items that are bulky to accommodate her post-cesarean section medical restrictions for three months.

1. Known Limitation: Mei's need for assistance in moving bulky items is a physical condition related to childbirth; Mei needs an adjustment or change at work; Mei has communicated this information to the employer.

2. Qualified: Mei could perform the essential functions of her position with the reasonable accommodation of a dolly.

3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #18/Appropriate Uniform and Safety Gear: Ava, a pregnant police officer, asks their union representative for help getting a larger size uniform and larger size bullet proof vest in order to cover their growing pregnancy. The union representative asks management for an appropriately sized uniform and vest for Ava.

1. Known Limitation: Ava's inability to wear the standard uniform and safety gear is a physical condition related to pregnancy; Ava needs an adjustment or change at work; Ava's representative has communicated this information to the employer.

2. Qualified: Ava is qualified with the reasonable accommodation of appropriate gear.

3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #19/Temporary Suspension of Essential Function(s): Darina, a pregnant police officer in the third month of pregnancy, talks to human resources about being taken off of patrol and put on light duty for the remainder of her pregnancy to avoid physical altercations such as subduing suspects that may harm her pregnancy. The department has an established light duty program that it uses for officers with injuries that occurred on the job.

1. Known Limitation: Darina has a need or a problem related to maintaining the health of her pregnancy; Darina needs an adjustment or change at work; Darina has communicated this information to the employer.

2. Qualified: The suspension of the essential functions of patrol duties is temporary and could end “in the near future” (within generally forty weeks) And it appears that the temporary suspension of the essential function can be accommodated through the light duty program.

3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship. In determining if there is an undue hardship, the employer cannot rely on the fact that this type of modification is normally reserved for those with on-the-job injuries. The fact that the employer provides this type of modification for other employees points to this not being an undue hardship.

Example 1636.3 #20/Temporary Suspension of Essential Function(s): Rory works in a fulfillment center where she is usually assigned to a line where she has to move packages that weigh 20 pounds. After returning from work after giving birth, Rory has a lifting restriction of 10 pounds due to sciatica during her pregnancy. The restriction is for 12 weeks. The employer does not have an established light duty program. There are other lines in the warehouse that do not require lifting more than 10 pounds and some of the packages on Rory's usual line weigh less than 10 pounds.

1. Known Limitation: Rory has a known limitation related to pregnancy, childbirth, or a related medical condition.

2. Qualified: The suspension of the essential function of lifting packages that weigh up to 20 pounds is temporary and Rory could be able to perform the essential function in the near future. It appears that the temporary suspension of the essential function could be accommodated by temporarily suspending the requirement that Rory lift more than 10 pounds or by assigning her to a different line.

3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #21/Unpaid Leave: Tallah, a newly hired cashier at a small bookstore, has a miscarriage in the third month of pregnancy and asks a supervisor for ten days of leave to recover. As a new employee, Tallah has only earned 2 days of paid leave. The employer is not covered by the FMLA and does not have a company policy regarding the provision of unpaid leave, but Tallah is covered by the PWFA.

1. Known limitation: Tallah's need to recover from the miscarriage is a physical or mental condition related to pregnancy or arising out of a medical condition related to

pregnancy; Tallah needs an adjustment or change at work; Tallah has communicated this information to the employer.

2. Qualified: After the reasonable accommodation of leave, Tallah will be able to do the essential functions of the position with or without accommodation.

3. The employer must grant the accommodation of unpaid leave (or another reasonable accommodation) absent an undue hardship.

Example 1636.3 #22/Unpaid Leave for Prenatal Appointments: Margot started working at a retail store shortly after she became pregnant. She has an uncomplicated pregnancy. Because she has not worked at the store very long, she has earned very little leave and is not covered by the FMLA. In her fifth month of pregnancy, she asks her supervisor for the reasonable accommodation of unpaid time off beyond the leave she has earned to attend her regularly scheduled prenatal appointments.

1. Known limitation: Margot's need to attend health care appointments is a need or a problem related to maintaining her health or the health of her pregnancy; Margot needs an adjustment or change at work; Margot has communicated the information to the employer.

2. Qualified: Margot can do her job with the reasonable accommodation of leave to attend health care appointments.

3. The employer must grant the accommodation of unpaid time off (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #23/Unpaid Leave for Recovery from Childbirth: Sofia, a custodian, is pregnant and will need six to eight weeks of leave to recover from childbirth. Sofia is nervous about asking for leave so Sofia asks her mother, who knows the owner, to do it for her. The employer has a sick leave policy but no policy for longer periods of leave. Sofia does not qualify for FMLA leave.

1. Known limitation: Sofia's need to recover from childbirth is a physical condition; Sofia needs an adjustment or change at work; Sofia's representative has communicated this information to the employer.

2. Qualified: After the reasonable accommodation of leave, Sofia will be able to do the essential functions of the position.

3. The employer must grant the accommodation of unpaid leave (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #24/Unpaid Leave for Medical Appointments: Taylor, a newly hired member of the waitstaff, requests time off to attend therapy appointments for postpartum depression. As a new employee, Taylor has not yet accrued sick or personal leave and is not covered by the FMLA. Taylor asks her manager if there is some way that she can take time off.

1. Known limitation: Taylor's postpartum depression is a medical condition related to pregnancy, and she is seeking health care; Taylor needs an adjustment or change at work; Taylor has communicated this information to the employer.

2. Qualified: Taylor can do the essential functions of the job with a reasonable accommodation of time off to attend the therapy appointments.

3. The employer must grant the accommodation of unpaid leave (or another reasonable accommodation) absent an undue hardship.

Example 1636.3 #25/Unpaid Leave or Schedule Change: Claudine is six months pregnant and needs to have regular check-ups. The clinic where Claudine gets her health care is an hour drive away, and they frequently get backed up and she has to wait for her appointment. Depending on the time of day, between commuting to the appointment, waiting for the appointment, and seeing her provider, Claudine may miss all or most of an assigned day at work. Claudine is not covered by the FMLA and does not have any sick leave left. Claudine asks human resources for a reasonable accommodation such as time off or changes in scheduling so she can attend her medical appointments.

1. Known limitation: Claudine needs health care related to her pregnancy; Claudine needs an adjustment or change at work; Claudine has communicated that information to the employer.

2. Qualified: Claudine can do the essential functions of the job with a reasonable accommodation of time off or a schedule change to attend medical appointments.

3. The employer must grant the accommodation of time off or a schedule change (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #26/Telework: Raim, a social worker, is in the seventh month of pregnancy and is very fatigued as a result. She asks her supervisor if she can telework and see clients virtually so she can rest between appointments.

1. Known limitation: Raim's fatigue is a physical condition related to pregnancy; Raim needs an adjustment or change at work; Raim has communicated that information to the employer.

2. Qualified: Assuming the appointments can be conducted virtually, Raim can perform the essential functions of her job with the reasonable accommodation of working virtually. If there are certain appointments that must be done in person, the reasonable accommodation could be a few days of telework a week and then other accommodations that would give Raim time to rest, such as assigning Raim in-person appointments at times when traffic will be light so that they are easy to get to or setting up Raim's assignments so that on the days when she has in-person appointments she has breaks between them. Or the reasonable accommodation could be the temporary suspension of the essential function of in-person appointments.

3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #27/Temporary Workspace/Possible Temporary Suspension of an Essential Function: Brooke, a pregnant research assistant in her first trimester of pregnancy, asks the lead researcher on the project for a temporary workspace that would allow her to work in a well-ventilated area because her work involves hazardous chemicals that her health care provider has told her to avoid. She also points out that there are several research projects she can work on that do not involve exposure to hazardous chemicals.

1. Known limitation: Brooke's need to avoid the chemicals is a physical or mental condition related to maintaining the health of her pregnancy; Brooke needs a change or adjustment at work; Brooke has communicated this information to the employer.

2. Qualified: If working with hazardous chemicals is an essential function of the job, Brooke may be able to perform that function with the accommodation of a well-ventilated work area. If providing a well-ventilated work area would be an undue hardship, Brooke could still be qualified with the temporary suspension of the essential function of working with the hazardous chemicals because Brooke's inability to work with hazardous chemicals is temporary, and Brooke could perform the essential functions in the near future (within generally forty weeks). And it appears that her need to avoid exposure to hazardous chemicals could also be accommodated by allowing her to focus on the other research projects.

3. The employer must provide an accommodation such as a well-ventilated space or another reasonable one, absent undue hardship. If the employer cannot accommodate Brooke in a way that allows Brooke to continue to perform the essential functions of the position, the employer must consider alternative reasonable accommodations, including temporarily suspending one or more essential function(s), absent undue hardship.

Example 1636.3 #28/Temporary Transfer to Different Location: Katherine, a budget analyst who has cancer, is also pregnant, which creates complications for her treatment. She asks the manager for a temporary transfer to an office in a larger city that has a medical center that can address her medical needs due to the combination of cancer and pregnancy.

1. Known limitation: Katherine has a need or problem related to maintaining her health or the health of her pregnancy; Katherine needs a change or adjustment at work: Katherine has communicated that information to the employer.

2. Qualified: Katherine is able to do the essential functions of her position with the reasonable accommodation of a temporary transfer to a different location.

3. As under the ADA, a PWFA reasonable accommodation can include a workplace change to facilitate medical treatment, including accommodations such as leave, a schedule change, or a temporary transfer to a different work location needed in order to obtain treatment. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #29/Pumping Breast Milk: Salma gave birth thirteen months ago and wants to be able to pump breast milk at work. Salma works at an employment agency that sends her to different jobs for a day or week at a time. Salma asks the person at the agency who makes her assignments to only assign her to employers who will allow her to take a break to pump breast milk at work.

1. Known limitation: Salma's need to express breast milk is a physical condition related to lactation which is a related medical condition; Salma needs a change or adjustment at work; Salma has communicated this information to the covered entity.

2. Qualified: Salma is able to perform the functions of the jobs to which she is assigned with the reasonable accommodation of being assigned to workplaces that will allow her to pump at work.

3. The agency must grant the accommodation (or another reasonable accommodation) absent undue hardship.

Example 1636.3 #30/Additional Breaks: Afefa, a pregnant customer service agent, requests two additional 10-minute rest breaks and additional bathroom breaks as needed during the workday. The employer determines that these breaks would not pose an undue hardship and grants the request. Because of the additional breaks, Afefa responds to three fewer calls during a shift. Afefa's supervisor should evaluate her performance taking into account her productivity while on duty, excluding breaks. Penalizing an employee for failing to meet production standards due to receipt of additional breaks as a reasonable accommodation would render the additional breaks an ineffective accommodation. It also may constitute retaliation for use of a reasonable accommodation. However, if there is evidence that Afefa's lower production was due not to the additional breaks, but rather to misconduct (for example, if she has frequent and unexcused absences to make or receive personal phone calls) or other performance issues, the employer may consider the lower production levels consistent with the employer's production and performance standards.

1636.3(j) Undue Hardship

The PWFA at 42 U.S.C. 2000gg(7) uses the definition of “undue hardship” from section 101 of the ADA. The PWFA provides that the term shall be construed under the PWFA as it is under the ADA and as set forth in these regulations. The proposed rule, at (j)(1) of this paragraph, reiterates the definition of undue hardship provided in the ADA regulations, which explains that undue hardship means significant difficulty or expense incurred by a covered entity. The proposed rule then, at (j)(2) of this paragraph, outlines some factors to be considered when determining if undue hardship exists.

113

29 CFR 1630.2(p).

Consistent with the ADA, a covered entity that claims that a reasonable accommodation will cause an undue hardship must consider whether there are other reasonable accommodations it can provide, absent undue hardship.

114

Additionally, if the employer can only provide a part of the reasonable accommodation absent undue hardship—for example, the employer can provide six weeks of leave absent undue hardship but the eight weeks that the employee is seeking would cause undue hardship—the employer must provide the reasonable accommodatio

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