As most of you know, the Pregnant Workers Fairness Act took effect on June 27, but employers had virtually no guidance regarding how to comply.
The PWFA requires employers with 15 or more employees to make reasonable accommodations for the “known limitations” of applicants and employees related to pregnancy and related conditions.
This past Monday, the U.S. Equal Employment Opportunity Commission – which will enforce the PWFA – issued proposed regulations. (The official Notice of Proposed Rulemaking will be published in the Federal Register this Friday.) Comments will be accepted for 60 days after publication in the Federal Register. (If you’d like to submit a comment, the information is at the beginning of the linked proposed regulations.)
If you have had dealings with reasonable accommodation under the Americans with Disabilities Act, you will get a definite sense of deja vu. However, there are some important differences, and that is what I will focus on here.
For simplicity, I will refer only to “employees,” but be aware that the PWFA’s protections apply to job applicants as well.
In contrast with the ADA, the PWFA does not require that an employee be “substantially limited” and does not require that the condition be somewhat long-ish term in nature. Instead, the PWFA is intended to address the limitations that arise during pregnancy, including morning sickness, lifting restrictions, postpartum depression, and other conditions that may go away in a relatively short time.
Not surprisingly, the PWFA applies to conditions that may occur outside the roughly nine months of pregnancy, including trying to get pregnant and trying not to be pregnant. In addition to pregnancy, childbirth, and labor, the regulations say that the following is a “non-exhaustive list” of conditions that will be covered if related to pregnancy:
[M]iscarriage, stillbirth, or abortion; infertility; fertility treatment; ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal (during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstrual cycles; use of birth control; and lactation and conditions related to lactation . . ..
Unlike the ADA, the PWFA has more of a laid-back reasonable accommodation process. Generally, the EEOC envisions that employers will receive informal, word-of-mouth requests for pregnancy accommodation and will not need a doctor’s note. Employers would not be allowed to require that initial accommodation requests be made in writing or by filling out a form, although they would be able to request that later.
Also, if the condition is obvious (for example, an employee who is eight months pregnant), the employer would not be expected to have to confirm the condition, although it might still need to get help from the employee’s health care provider about the need for accommodation. In assessing whether the employee has a condition that requires accommodation, as with the ADA, “mitigating measures” that are helpful to the employee may not be considered. However, bad “mitigating measures” (for example, the employee has to take medication with severe side effects) must be.
Under the PWFA, a pregnant employee is “qualified” if she can perform the essential functions of her job with or without a reasonable accommodation, OR if she is temporarily unable to perform an essential function of her job but will be able to do so again “in the near future.” The EEOC proposes to use 40 weeks as “the near future,” meaning that if the mother can perform her essential job functions within 40 weeks of the time that the function is suspended, she is “qualified.” The 40 weeks is based on the duration of a normal, full-term pregnancy. However, the EEOC has asked for comments as to whether it should expand this period to a full year.
Determining whether a particular job function is “essential” (as opposed to “marginal”) would be done in essentially the same way that it is done under the ADA.
The definition of “reasonable accommodation” under the PWFA is essentially the same as under the ADA, but the PWFA definition includes
breaks for use of the restroom, drinking, eating, and/or resting; acquisition or modification of equipment, uniforms, or devices, including devices that assist with lifting or carrying . . . providing seating for jobs that require standing, or standing for jobs that require sitting . . ..
Under the proposed regulations, employers would also be required to consider letting employees with pregnancy-related limitations participate in a pre-existing light duty program, even if that program is normally available only to employees who are injured on the job.
Paid or unpaid leave could be another type of reasonable accommodation, but the employer should not require the employee to take leave if the employee is able to continue working and prefers to do so.
Accommodating lactation needs is similar to what is now required under the PUMP for Nursing Mothers Act, although the PWFA regulations would require employers to
- Provide lactation accommodations beyond one year after the baby’s birth.
- Ensure that the lactation area “is in reasonable proximity to the employee’s usual work area.”
- Ensure that the lactation area is “regularly cleaned; that it has electricity, appropriate seating, and a surface sufficient to place a breast pump; and that it is in reasonable proximity to a sink, running water, and a refrigerator for storing milk.”
The proposed regulations include a list of accommodations that the EEOC says will almost always be found to be reasonable and that employers should grant without asking for documentation:
- Letting the individual keep handy water or another beverage throughout the workday.
- Providing extra bathroom breaks.
- Letting the individual sit or stand.
- Letting the individual have extra breaks for eating and drinking.
The “interactive process” and documentation
Under the PWFA (the statute), it is unlawful for an employer to require an employee to accept a reasonable accommodation without first going through the interactive process.
An employer can request documentation, but it is more limited in that regard than under the ADA. It would be all right for the employer to request documentation to confirm the employee’s condition, that the condition is pregnancy-related, and that work-related adjustments need to be made. The request can be made to an appropriate health care provider, but the employer would not be able to send the employee to a health care provider of the employer’s choice.
The proposed regulations warn employers that making requests for documentation that are not “reasonable” can violate the PWFA. “Unreasonable” requests for documentation would include the following:
- Requests made even though the employee’s condition and need for accommodation are obvious.
- Requests made even though the employee has already provided adequate documentation.
- Requests made even though the employee has asked for an accommodation that the EEOC has included in its “predictive assessments” category.
- Requests made when the employee asks for lactation accommodation.
Not surprisingly, it is a violation of the PWFA for an employer to refuse to accommodate an applicant or employee’s known pregnancy-related limitations unless doing so would be an undue hardship. The proposed regulations also provide that an undue delay in making an accommodation would violate the law. (The EEOC recommends that, if an employer foresees a delay, it should make an “interim accommodation” pending a final decision.)
An employee who can’t perform the essential functions of the job because she rejected a reasonable accommodation offered by the employer after the interactive process would not be “qualified” under the PWFA. In other words, she would lose her PWFA protection.
Of course, retaliation, harassment, and “coercion” (interference) are also prohibited, and this would apply to all employees, not just employees with pregnancy-related conditions.
The proposed regulations also have an Interpretive Guidance Appendix that contains helpful examples and more detailed information.