On August 11, 2023, the EEOC published proposed regulations for the Act in the Federal Register. Comments are due within 60 days from that date, which is October 10, 2023. Employers can provide their comments on the proposed regulations electronically at http://www.regulations.gov.
There is a distinction between accommodations under the Americans with Disabilities Act and this. Under the ADA, an accommodation suspending an essential work function is rarely considered “reasonable.” Here, the EEOC will examine whether other employees, temporary workers, or third parties can perform the essential function, possibly leading to staff duplication during the accommodation period. It will also determine whether to essential function can be postponed or remain undone for a period.
The EEOC provides four specific examples of accommodations: 1) allowing possession of water and drinking the water in the work area. 2) allowing more restroom breaks. 3) allowing and alternating standing and sitting. 4) providing breaks for eating and drinking.
The proposed rules prohibit employers from requiring a qualified employee to take a paid or unpaid leave of absence when the employer can provide another reasonable accommodation to allow the employee to continue working.
Finally, regarding the interactive process to determine a reasonable accommodation, employers are prohibited from requiring an employee requesting an accommodation to be examined by a healthcare victim of the employer’s choice. The employer is limited to requiring only reasonable supporting documentation under the circumstances to confirm the pregnancy and conditions arising from the pregnancy leading to the request for accommodation. In true bureaucratic fashion, the proposed rules do not define the “circumstances.”
Although the regulations are not in effect, it would be wise to use them as guidelines.