August 23, 2023
Jeffrey A. Calabrese
Member, Stoll Keenon Ogden PLLC
Kirby A. Black
Associate, Stoll Keenon Ogden PLLC
On August 7, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (“Notice”) to implement the new federal Pregnant Workers Fairness Act (“PWFA”). The PWFA took effect on June 27, 2023, and requires covered employers (i.e., employers with fifteen or more employees) to provide reasonable accommodations to qualified workers with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. The PWFA was enacted to address gaps in existing workplace protections and allows for pregnant and postpartum workers to retain their jobs while maintaining a healthy pregnancy and recovering from childbirth. The PWFA builds upon existing protections against pregnancy discrimination under Title VII and access to reasonable accommodations under the Americans with Disabilities Act (“ADA”) by applying that law’s concepts of “reasonable accommodations” and “undue hardship” to pregnant workers. Pregnancy has previously been excluded from the ADA’s definition of “disability.”
The EEOC’s Notice explains how the EEOC proposes to interpret the PWFA and provides definitions of key terms and phrases in the PWFA, such as “related medical conditions,” “temporary,” and “essential functions.” The Notice also includes tangible, real-world examples of reasonable accommodations that help workers understand their rights under the PWFA and help employers ensure compliance with the new law and retain skilled employees.
Even though the Notice is not yet final and is subject to a comment period set to close on October 10, 2023, employers should learn now how the EEOC currently plans to interpret and enforce the PWFA. Some key takeaways from the Notice include answers to the following common questions:
- Who is entitled to an accommodation under the PWFA?
Qualified employees or applicants who are limited due to pregnancy, childbirth, and related medical conditions are entitled to an accommodation, as long as the accommodation does not create an undue hardship. Unlike the ADA, employees or applicants who cannot perform their essential duties may still be “qualified” under the PWFA.
If a worker has a “known limitation” due to pregnancy, childbirth, or related medical condition, then the worker may request a reasonable accommodation. (The PWFA covers both employees and applicants. Here, we use the term “worker” to refer to both employee and applicant.) As long as the worker is “qualified,” the employer must grant the requested accommodation or an equally effective accommodation, unless doing so imposes an undue hardship.
- What is a “known limitation”?
A “known limitation” is a mental or physical condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions – including common, modest, minor, and/or episodic impediments or problems that have been communicated to the employer.
While many of the concepts in the PWFA parallel the ADA, “known limitation” is a unique statutory term. Unlike the ADA, a worker does not have to show that a limitation meets a specific level of severity to be covered under the PWFA. Rather, the PWFA is intended to cover even uncomplicated and healthy pregnancies. In addition to “impediments or problems,” the proposed definition of “limitation” includes “needs or problems related to maintaining [the worker’s] health or the health of their pregnancy,” as well as when a worker is “seeking health care related to pregnancy, childbirth, or a related medical condition itself.”
Employers are only responsible for accommodating “known limitations” ––which must be communicated to the employer by the worker or the worker’s representative. There are no specific words or phrases that must be communicated, but the worker must identify their limitation related to pregnancy, childbirth, or related medical conditions and indicate that they need a change or modification at work. The employer is then obligated to respond and engage in an interactive process in good faith.
- What does the PWFA consider “Qualified”?
The PWFA features two separate definitions of “qualified.” The first definition tracks the language in the ADA: “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position” is qualified.
Under the second definition, however, even if a worker cannot perform one or more essential functions of their job, they are still qualified under the PWFA if: (1) the inability to perform the essential job function(s) is for a “temporary” period; (2) the essential job function(s) could be performed “in the near future”; and (3) the inability to perform the essential function(s) can be reasonably accommodated.
The EEOC’s proposed rule defines “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” “In the near future” is defined as “generally 40 weeks” from the start of the temporary suspension of an essential function. According to the EEOC, “in the near future” could be applied during pregnancy and then “in the near future” could restart during the post-partum period once the pregnancy is over and the employee has returned to work. The childbirth recovery leave period is not included in the definition of “in the near future” for the post-partum period.
The issue of whether a limitation is “temporary” is relevant only when a worker cannot perform one or more essential functions of the job in question because of a known limitation under the PWFA. This means that if a worker can perform the essential functions with a reasonable accommodation, the employer may be required to provide the accommodation on a long-term basis (like the ADA), subject to undue hardship.
- When does an “undue hardship” exist?
“Undue hardship,” for the purpose of determining the reasonableness of a requested accommodation, has the same meaning as under the ADA and generally means significant difficulty or expense for the operation of the employer in question. However, when an employer is determining whether suspension of an essential function will create an undue hardship, the EEOC has identified additional factors for employers to consider.
These factors are: (1) the length of time that the worker will be unable to perform the essential function(s); (2) whether there is work for the worker to accomplish by allowing the worker to perform all the other functions of the job, transferring the worker to a different position, or otherwise; (3) the nature of the essential function, including its frequency; (4) whether the covered entity has temporarily suspended the performance of essential job functions for other workers in similar positions; (5) whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s); and (6) whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.
- What types of standard accommodations are contemplated by the PWFA?
The EEOC’s proposed regulations add to the definition of “undue hardship” a paragraph titled “predictable assessments.” The EEOC anticipates that many accommodations sought under the PWFA will be for modest or minor changes in the workplace for limitations that will be temporary. Without the accommodation, a pregnant worker may quit their job or risk their health, thereby frustrating the purpose of the PWFA. Thus, in the proposed regulations, the EEOC identifies a limited number of simple modifications that will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by worker due to pregnancy.
The four “predictable assessments” are: (1) allowing an employee to carry water and drink, as needed, in the employee’s work area; (2) allowing additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and (4) and allowing breaks to eat and drink as needed.
- How is the “interactive process” defined?
The proposed regulations largely adopt the explanation of the interactive process contained in the ADA regulations so that the interactive process under the PWFA generally mirrors the same process under the ADA. The proposed regulations also note that there are no rigid steps that must be followed when engaging in the interactive process under the PWFA. However, the proposed regulations make the following adjustments to the definition of interactive process from the ADA in order to apply it to the PWFA.
First, the definition replaces references to “individual with disability” and similar terms with “employee with known limitations” and similar terms. Second, the definition makes clear that an individual is entitled to an accommodation as long as a “known limitation” is identified during the interactive process. The PWFA’s “known limitation” standard is less rigid than the ADA’s “precise limitation resulting from the disability” standard.
- When is it appropriate to require supporting documentation?
Under the proposed regulations, an employer may require documentation only if it is reasonable to do so under the circumstances for the employer to decide whether to grant the accommodation. The regulation provides that requiring supporting documentation is not reasonable if (1) the worker’s limitation and need for a reasonable accommodation are obvious; (2) the worker has already provided sufficient information to substantiate their request; (3) the worker seeks one of the “predictable assessments” at any time during their pregnancy; or (4) the limitation for which an accommodation is needed involves lactation because the EEOC considers the fact of breastfeeding obvious.
Consistent with the purposes of the PWFA, the EEOC encourages employers who choose to require documentation, when it is permitted under this regulation, to grant interim accommodations as a best practice if an employee indicates that they have tried to obtain documentation but there is a delay in obtaining it, and the documentation will be provided at a later date.
- What practices are expressly prohibited by the regulations?
The proposed regulations set out five possible violations involving the provision of reasonable accommodations.
First, employers cannot deny a reasonable accommodation to a qualified worker with a known limitation, absent undue hardship. Second, employers cannot require workers to accept an accommodation without engaging in the interactive process. Third, employers cannot deny employment opportunities to qualified workers based on their current or future need for a reasonable accommodation. Fourth, employers cannot require workers to take leave if another reasonable accommodation can be provided, absent undue hardship. Fifth and finally, employers cannot take adverse action in the terms, conditions, or privileges of employment based on a worker’s request or use of a reasonable accommodation. The proposed regulations also emphasize the PWFA’s prohibition against retaliation and coercion.
- What are some examples of reasonable accommodations?
“Reasonable accommodation” is a term borrowed from the ADA, and the PWFA uses a similar definition as in the ADA. Generally, it means a change in the work environment or how things are usually done. The proposed rule provides specific examples of possible reasonable accommodations under the PWFA, including:
Frequent breaks; sitting/standing; schedule changes, part-time work, and paid and unpaid leave; telework; parking; light duty; making existing facilities accessible or modifying the work environment; job restructuring; temporarily suspending one or more essential function; acquiring or modifying equipment, uniforms, or devices; and adjusting or modifying examinations or policies.
This is a non-exhaustive list of potential reasonable accommodations under the PWFA. Where there is more than one reasonable accommodation available, the employer has the ultimate discretion to choose between the accommodations, but primary consideration should be given to the employee or applicant’s preference.
- What Can Employers Do Now?
Employers should consider reviewing the proposed regulations to better understand their obligations under the PWFA and work closely with counsel to update any pregnancy accommodation policies and related forms. Employers are required to post notices describing the PWFA. An updated EEO poster is available on the EEOC website. Additionally, when handling accommodation requests, keep in mind that if another federal, state, or local law provides greater protection or different requirements, those laws will also apply. You can refer to the interactive map provided by the U.S. Department of Labor for state-by-state information on protections for pregnant and nursing workers.
The proposed regulations were published on August 11th, 2023, and are now open for public comment in the Federal Register. Employers and other members of the public wishing to comment will have 60 days from the date of publication to do so through www.regulations.gov. Following the public comment period, the EEOC will have until December 29, 2023 to issue final regulations. Finally, at this stage, it is important to remember that these proposed regulations are subject to change and will most likely be revised after the comment period expires. Therefore, employers should stay abreast of the Regulation’s development in the media and involve counsel whenever pregnancy-related accommodations matters arise.
Stoll Keenon Ogden’s Labor, Employment & Employee Benefits practice has a proven record of being trusted advisors and effective advocates. We have extensive experience helping employers solve their problems through proactive counseling, employee training and, where possible, cost-efficient litigation, including alternative dispute resolution. If you have any questions, do not hesitate to contact us.