EEOC Proposed Regulations Implementing Pregnant Workers Fairness Act
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APPLIES TO All Employers with 15+ Employees |
EFFECTIVE As Indicated |
QUESTIONS? Contact HR On-Call |
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Discussion
The Pregnant Workers Fairness Act (PWFA) went into effect June 27, 2023 and requires employers with 15 or more employees to provide reasonable accommodations to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. As part of the implementation and enforcement of the law, the Equal Employment Opportunity Commission (EEOC) is required to issue final regulations by December 29, 2023. The EEOC formally published its proposed regulations on August 11, 2023. The proposed regulations are subject to a 60-day comment period where there may be some changes, but since the EEOC used existing requirements from Title VII of the Civil Rights Act and the Americans with Disabilities Act, employers should prepare for the following interpretations to be enforced.
Qualifying Employee. The only limitation the regulations provide is that an accommodation should be provided so long as an undue hardship is not created for the employer. Technically, an employee who cannot perform their essential duties may still be qualified for an accommodation since the employee only has to have a “known limitation” due to pregnancy, childbirth, or a related medical condition. There are two definitions of the term “qualified.” Under the ADA, an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position is qualified. Even if an employee cannot perform one or more essential functions of their job, they are still qualified if: 1) the inability to perform an essential job function is for a temporary period; 2) the essential job function could be performed in the near future; and 3) the inability to perform the essential function can be reasonably accommodated absent undue hardship.
“In the near future” is generally defined as 40 weeks from the start of the temporary suspension of an essential function but does not include the childbirth recovery leave period. Examples of accommodating the inability to perform essential functions includes, temporarily suspending the essential function that is unable to be performed, temporarily transferring the employee, allowing the employee to participate in a light duty program, or allowing a leave of absence if no other accommodation is available. If an employee can perform the essential functions with a reasonable accommodation, then the employer may be required to provide the accommodation on a long-term basis unless it creates an undue hardship.
“Known Limitation.” A “known limitation” is a mental or physical impediment or problem related to pregnancy, childbirth, or related medical conditions, including common or minor conditions, that have been communicated to the employer. A “limitation” means a modest, minor, or episodic impediment or problem. Employees can request accommodations to reduce increased pain or increased risk to the employee’s health that is related to pregnancy, childbirth, or a related medical condition.
A limitation is “known” if it was communicated to the employer by the employee or the employee’s representative. The employee is not required to use specific language to request an accommodation. Once communicated, the employer has an obligation to respond. Some accommodations may be complex and require a detailed interactive process.
Pregnancy, Childbirth, and Related Medical Conditions. The PWFA does not define the terms pregnancy, childbirth, and related medical conditions. The EEOC, however, construes these terms as it would under Title VII. “Pregnancy” and “childbirth” include current pregnancy, past pregnancy, potential or intended pregnancy, labor, and childbirth which includes vaginal and cesarean delivery. “Related medical conditions” examples include, but are not limited to, termination of pregnancy, including by miscarriage, stillbirth, or abortion; infertility; fertility treatment; lactation and conditions related to lactation; use of birth control; menstrual cycles; postpartum depression, anxiety or psychosis; vaginal bleeding; preeclampsia; pelvic prolapse; preterm labor; ectopic pregnancy; gestational diabetes; cesarean or perineal wound infection; maternal cardiometabolic disease; endometriosis; changes in hormone levels; and many other conditions. Medical conditions that are not unique to pregnancy or childbirth but also may arise include, but are not limited to, chronic migraine headaches, nausea or vomiting, high blood pressure; incontinence, and carpal tunnel syndrome.
Undue Hardship. Undue hardship has the same meaning as under the ADA. Factors for creating an undue hardship include: 1) the length of time that the employee or applicant will be unable to perform the essential function(s); 2) whether there is work for the employee to accomplish by allowing the employee to perform all the other functions of the job, transferring the employee 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 employees 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.
Accommodations that do not impose an undue hardship are: 1) allowing an employee to carry water and drink, as needed, in the employee’s work area; 2) allowing an employee additional restroom breaks; 3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and 4) allowing an employee breaks, as needed, to eat and drink. Requesting documentation from a healthcare provider in these circumstances would not be reasonable. Employers, however, are allowed to choose a less expensive accommodation or an accommodation that is easier for them to provide in situations where there may be more than one effective accommodation.
Leave as an Accommodation. There is no bright line rule as to how much leave is to be provided. The EEOC states that a leave of absence to recover from pregnancy, childbirth, or related medical conditions does not count as time when an essential function is suspended, so it does not matter if the need for leave is temporary or whether the employee can return in the near future. If the employee is eligible for paid leave under a state or local paid sick leave law or under an employer-provided paid leave policy or benefit, employees have the choice to use that paid leave to run concurrently with time off as a reasonable accommodation under the PWFA to the extent that other employees are permitted to choose the type of leave may take.
Documentation. Employers can only request supporting documentation if it is reasonable under the circumstances for the employer to determine whether to grant the accommodation. An employer can seek documentation to describe or confirm: 1) the physical or mental condition; 2) the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and 3) a change or adjustment at work is needed for that reason.
It is not reasonable to request documentation when: 1) when both the limitation and the need for reasonable accommodation are obvious; 2) when the employee or applicant has already provided sufficient information, i.e., the employee has already provided a medical note imposing lifting restrictions for a specific time period; 3) when an employee states or confirms they are pregnant and requests one of the four common accommodations discussed above (carrying water and drinking as needed, taking additional restroom breaks, sitting or standing, and breaks, as needed, to eat and drink); and 4) when the limitation is lactation or pumping.
Lactation Accommodations. Reasonable accommodations related to lactation include extending the period of time during which the employee will be provided breaks and access to a private space beyond what is required under the PUMP Act, and providing a lactation area that is reasonably close to the employee’s work area, has electricity and appropriate seating, and is reasonably close to a sink and a refrigerator for storing milk, among other things.
Examples of Accommodations. The EEOC includes several examples of what could be potential accommodations: 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 healthcare-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.
Action Items
- Review the proposed regulations here.
- Review and prepare to update procedures regarding reasonable accommodations for pregnancy, childbirth, and related medical conditions.
- Have appropriate personnel trained on the requirements when final.
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