We continue to track updates to the Pregnant Workers Fairness Act (“PWFA”) that took effect June 27.[1] On Aug. 7, the EEOC released its Notice of Proposed Rulemaking for implementing the PWFA (“Proposed Rule” or “Proposed Regulations”). The Proposed Regulations were published to the Federal Register on Aug. 11, starting the 60-day public comment period. In the interim, the Proposed Regulations provide employers with a glimpse into the EEOC’s enforcement strategy. While the PWFA is similar in some respects to the Americans with Disabilities Act and its scheme for providing reasonable accommodations, the proposed regulations provide guidance on how some of the various components of the law should operate.
As we await the final regulations, below are some notable areas of the Proposed Regulations. The EEOC went through an extensive discussion of the various words/phrases within the rule and provided definitions for the same. Along with definitions, the EEOC also included examples to help illustrate the various areas of the rule.
Scope, Coverage, and Enforcement: An employer must provide reasonable accommodations to a qualified employee or applicant[2] with a known limitation related to, affected by or arising out of pregnancy, childbirth or related medical conditions, unless the accommodation will create an undue hardship for the operation of the business. The PWFA applies to any employers covered by Title VII, and the enforcement and remedies of PWFA claims are similar to those in Title VII and ADA cases.
“Known limitation”: A “known limitation” is a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer where or not such condition meets the definition of disability” under the ADA.[3] In order for a “limitation” to be “known,” the employee or employee representative must have communicated the limitation to the employer. The limitation does not have to be severe or require a certain level of severity, and could be something that is “modest, minor, and/or [an] episodic impediment.” An employee’s limitation could also be related to the health of their pregnancy or seeking health care related to pregnancy or childbirth.
To the extent an employer has “reasonable concerns” about whether a limitation is “related to, affected by, or arising out of pregnancy,” the employer should engage in an interactive dialog with the employee and may request certain supporting information from the employee if it is reasonable to do so under the circumstances to make that determination. The ADA can be used as a guidepost for the interactive process which generally involves a discussion between the employer and employee to identify a reasonable accommodation. The EEOC states that in some instances the accommodation request is so straightforward that it would be unreasonable to require supporting documentation, such as if someone who is pregnant asks to carry a water bottle or sit if their job requires a lot of standing.
“Qualified”: Employers may be used to having employees labeled as “qualified” who “with or without reasonable accommodation can perform the essential functions of the job,” in accordance with the ADA. However, the PWFA is not as strict. Under the PWFA, a “qualified” employee can be someone who is not able to perform the essential functions of their job but only if the inability to perform such functions is a result of a temporary occurrence due to the condition of the employee, the employee can perform the essential functions in the near future and the inability to perform can be reasonably accommodated. In theory, the temporary suspension of a pregnant employee’s ability to perform an essential job function may be 40 weeks or longer. However, an employer may deny such accommodation if it would pose an undue hardship on the business.
Reasonable Accommodations: With the passage of the PWFA, pregnant workers will now have the right to reasonable accommodations similar to the right provided to disabled workers under the ADA. The EEOC’s Proposed Regulations list examples of reasonable accommodations under the PWFA, which include: light-duty assignments; frequent break periods; providing an employee with different equipment or devices, such as a stool to sit on; parking; schedule changes; part-time work and paid/unpaid leave; telework; job restructuring; temporarily suspending one or more essential functions; and adjusting or modifying examinations or policies. See the Proposed Regulations for more information and examples of potential reasonable accommodations under the PWFA.[4]
Undue Hardship: Covered employers will be required to provide reasonable accommodations to pregnant employees unless doing so will pose an undue hardship on the employer. Under the PWFA, “undue hardship” means the significant or difficult expense to the operation of the business. Important factors to consider in assessing undue hardship include: the employer’s size and financial resources compared to the type and/or form of accommodation requested by the employee; the length of time the employee is unable to perform an essential function; whether there is other work for the employee; the nature and/or frequency of the essential function; whether there are temporary employees that can be hired to complete the job; and whether (and for how long) the essential functions can be postponed. Accordingly, accommodation requests under the PWFA, like ADA accommodations, should be examined on a case-by-case basis.
Looking Ahead
The EEOC’s Proposed Rule is extensive and covers various areas that may be relevant to a covered entity. We will continue to monitor the regulations and report in further detail once the Proposed Rule becomes final.
In the interim, employers should remember that the EEOC’s stance is that “voluntary compliance” with the PWFA is critical to its success. Based on the Proposed Rules, the EEOC seems keen on bringing enforcement actions under the PWFA and/or penalizing covered entities for acts deemed inconsistent with the Act when the employee’s need is straightforward and can be easily accommodated. And with the EEOC now accepting charges under the PWFA, employers should take extra care when dealing with pregnancy-related accommodation requests and ensure that their interactive process and documentation requirements as they pertain to pregnant workers are in line with the Proposed Regulations.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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