April was a busy month for employers, with big announcements coming from the U.S. Department of Labor (DOL) concerning minimum wage and overtime exemptions and the Federal Trade Commission (FTC) with respect to the issuance of a final rule prohibiting the use of non-compete agreements in the workplace (more on both of those issues will be coming soon from Chartwell Law). Lost in the shuffle of the Fair Labor Standards Act (FLSA) and FTC rules on non-compete agreements, the Equal Employment Opportunity Commission (EEOC) issued a final regulation to implement the Pregnant Workers Fairness Act (PWFA).
The PWFA went into effect on June 27, 2023, but the new regulations to carry out the law do not go into effect until June 18, 2024. In response, a lawsuit was filed by 17 states in federal court in Arkansas to prevent these new regulations from being enforced. The PWFA will apply to private and public sector employers with 15 or more employees and provides for reasonable accommodations for qualified applicants or employees who have known physical or mental conditions arising out of pregnancy, childbirth, or related medical conditions.
The regulations provide some key insights for employers to maintain compliance with the PWFA. For example, the PWFA only applies to “known” limitations, defined as “the employee or the employee’s representative has communicated the limitation to the employer.” This seems to indicate that the employee has some duty to inform the employer about their limitations relating to pregnancy and that knowledge is not imputed by other third parties. “Limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medication conditions. The limitations:
- must be an impediment or problem that may be modest, minor, and/or episodic;
- a need or problem related to maintaining the employee's health or the health of the pregnancy; or
- seeking health care related to pregnancy, childbirth, or a related medical condition itself.
The regulations make clear that a physical or mental condition can be a limitation under the PWFA, even if it is not a disability under the Americans with Disabilities Act (ADA).
The final rule also includes examples of possible accommodations, including frequent breaks, sitting/standing, schedule changes, telework, parking, light duty, job restructuring, temporarily suspending one or more essential functions, or modifying equipment or uniforms. Like the ADA, employers are not required to provide accommodations that pose an undue hardship. However, the final rule does include several modifications that will, in almost all cases, be found to be reasonable accommodations that do not impose an undue hardship, including carrying or keeping water nearby to drink, additional restroom breaks as needed, allowing an employee to sit or stand as needed, and breaks to eat and drink as needed.
Interestingly, under the final rule, an employer is not required to seek supporting documentation from an employee or applicant who requests accommodation under the PWFA. An employer is only permitted to seek documentation if it is reasonable under the circumstances to determine whether the employee or applicant has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (i.e., a limitation) and needs a change or adjustment at work due to the limitation.
The rule does provide examples of when it would not be reasonable to require documentation, including “when the employee's limitation (i.e., physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions) and the adjustment or change at work that is needed due to the limitation are obvious, and the employee confirms the limitation and the adjustment or change at work needed due to the limitation.” This means that if an employee has an obvious limitation and the need for accommodation is obvious, coupled with the employee’s confirmation of such a need, the employer cannot seek further documentation. Similarly, if an employee has already provided documentation regarding their need for leave due to morning sickness. In that case, an employer may not seek new documentation from a healthcare provider every time the employee needs to use leave due to morning sickness.
The final rule is expansive and contains many technical requirements that employers must know about to comply with the PWFA when dealing with pregnant employees. When compared with recent news from the U.S. DOL and the FTC, it is likely that the PWFA will have a larger impact on companies and create more questions when engaging with pregnant employees or applicants. The attorneys at Chartwell Law are standing by to assist with questions relating to the PWFA.
Chartwell Law will provide more information on the U.S. DOL’s FLSA exemption threshold changes and the FTC’s rule prohibiting the use of non-compete agreements.
