Pregnant Workers Fairness Act (PWFA), Proposed Regulations, Part 2

by Lana L. Rupprecht, Esq. - AVP Product Compliance

& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,

September 06, 2023

 

As promised, here is Part 2 of our summary of key issues surrounding the proposed regulations and related materials for the Pregnant Workers Fairness Act (PWFA) published by the Equal Employment Opportunity Commission (EEOC) on August 11, 2023.

First, here is our prior blog containing Part 1 of our summary:

PWFA Proposed Regulations - Part 1 (absencementor.blog)

And here is a link to the EEOC's proposed regulations:

Federal Register :: Regulations To Implement the Pregnant Workers Fairness Act.

And remember, these are draft regulations only. Our summaries are subject to change. As always, stay tuned!

Remind me one more time, what are the key requirements of the PWFA?

The PWFA requires employers with 15 or more employees to provide reasonable accommodations to qualified employees or applicants (we will refer to qualified employees for short) with a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions UNLESS doing so will result in an undue hardship.

What is covered under "pregnancy, childbirth or related medical conditions"?

The following are identified in the proposed regulations:

• current pregnancy,
• past pregnancy,
• potential or intended pregnancy,
• labor and childbirth,
• lactation (including breastfeeding and pumping),
• use of birth control,
• menstruation,
• infertility and fertility treatments,
• endometriosis,
• 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,
• termination of pregnancy (miscarriage, stillbirth, abortion),
• ectopic pregnancy,
• pelvic prolapse,
• nerve injuries,
• cesarean or perineal wound infection,
• maternal cardiometabolic disease,
• gestational diabetes,
• preeclampsia,
• HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome,
• 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

Further, the EEOC states that an employee does not have to specify a condition in this list or use medical terms to describe a condition (or ask for an accommodation).

If an employee has one of the medical conditions identified in the proposed regulations but it is not related to pregnancy or childbirth, does the PWFA still apply?

No. The regulations provide that if a worker has a listed condition, but the condition does not relate to pregnancy or childbirth, the condition shall not be covered under the PWFA.

For example, an employee with high blood pressure unrelated to pregnancy or childbirth is not eligible for an accommodation under the PWFA. However, the employee may be eligible for a reasonable accommodation under another civil rights statute such as the Americans with Disabilities Act (ADA).

If an employee has a preexisting medical condition that is exacerbated by pregnancy or childbirth requiring a different type of accommodation, is the employee covered by the PWFA?

Yes, according to the proposed regulations, a related medical condition may include conditions that existed before pregnancy or childbirth (and for which an individual was perhaps receiving reasonable accommodation under the ADA) that may be or have been exacerbated by pregnancy or childbirth. Here are some examples from the EEOC:

• An employee uses unpaid leave as an accommodation for anxiety treatment. This anxiety may become worse due to pregnancy or childbirth and therefore, the employee may request an additional accommodation.
• An employee who already receives extra eating breaks relating to Type 2 diabetes may need additional accommodations during pregnancy to monitor the diabetes.
• An employee may have high blood pressure requiring no accommodation when not pregnant, but once the employee is pregnant, the high blood pressure poses a risk and bed rest is needed.

According to the EEOC, in these situations, an employee could request additional accommodations under the ADA or an accommodation under the PWFA.

Do the proposed regulations describe how an employee can request an accommodation under the PWFA?

Yes. Employees are responsible for requesting an accommodation. They do not need to mention the PWFA, use medical terms, say any specific phrases, follow any particular process, or use a specific form. Also, the request can be oral and does not need to be written. And, it can be made to any representative of the employer. Gear up your supervisor training!

The proposed regulations state that employee-employer communication "is the key to voluntary compliance."

Can an employer request documentation from the employee in support of PWFA accommodations?

According to the proposed regulations, an employer may seek supporting documentation to support a PWFA request, only if: 1) the request itself is reasonable; and 2) the type of documentation requested is reasonable. Of course, what is reasonable is determined on a case-by-case basis.

The proposed regulations provide several examples of when requesting supporting documentation is NOT reasonable.

• When the limitation and need for reasonable accommodation are obvious. (i.e., an "obviously pregnant worker states or confirms they are pregnant and asks for a different size uniform or related safety gear...")
• When the worker has already provided sufficient information to substantiate a known limitation.(i.e., an employee "already provided documentation stating that because of their recent cesarean section, they should not lift over 20 pounds for two months, the employer may not require further documentation during those two months...")
• When the requested accommodation involves lactation or pumping.
• When the pregnant worker seeks accommodations to carry water, take additional restroom breaks, sit if the job requires standing or stand if the job requires sitting, and breaks to eat and drink (the "predictable assessments" identified by the EEOC).

What is considered "reasonable documentation" under the proposed regulations?

The proposed regulations define "reasonable documentation" as documentation that describes or confirms: (1) the physical or mental condition; (2) that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3) that a change or adjustment at work is needed for that reason.

The proposed regulations provide that if a pregnancy is obvious, but the limitation related to the pregnancy or parameters of an accommodation are not obvious, the employer may only request documentation relevant to the accommodation. Here are examples from the EEOC:

• An employee who is obviously pregnant, states or confirms that they are pregnant, and asks to avoid lifting heavy objects. In this case, it may be reasonable for the employer to request documentation about the limitation such as the extent of the lifting restriction and its expected duration, but not about the pregnancy itself.
• An obviously pregnant employee requests the reasonable accommodation of leave related to childbirth and recovery. In this case, it may be reasonable for the employer to require documentation regarding the amount of time the worker anticipates needing to recover from childbirth, but not reasonable to require documentation of the pregnancy itself.

How does the PWFA define undue hardship?

The PWFA borrows the definition of "undue hardship" from the ADA. Generally, undue hardship means significant difficulty or expense for the operation of the employer.

With respect to when leave is a reasonable accommodation, the proposed regulations state that an employer may be able to deny a leave request if the leave requested poses an undue hardship due to its "length, frequency, or unpredictable nature, or because of another factor..." (Again, this is more guidance than the ADA and its regulations provide.)

How does the reasonable accommodation process work under the PWFA?

The PWFA borrows from the ADA's reasonable accommodation process but provides a lot more guidance. (This can be handy for any employer not comfortable with managing the interactive process under the ADA also.) The regulations provide that when an employee with a known limitation requests a reasonable accommodation regarding the performance of the job, the employer should:

• Analyze the particular job to determine its purpose and essential functions;
• Consult with the employee to ascertain what kind of accommodation is necessary given the known limitation;
• Identify potential accommodations and assess their effectiveness. If the employee is temporarily unable to perform essential functions, the employer and employee must also consider whether suspending one or more essential functions may be a part of the reasonable accommodation if such essential functions can be performed in the near future (within forty weeks); and
• Consider the employee's accommodation preference and select and implement the accommodation that is most appropriate for both the employee and employer.

The regulations provide that if the accommodation is obvious, this process described above may not be needed. Further accommodations such as allowing the employee to drink water regularly during the workday, additional restroom breaks, modifications in policies regarding sitting or standing, or modifications in policies regarding eating or drinking, will "virtually always be found to be reasonable accommodations that do not impose an undue hardship and are therefore unlikely to require significant discussion in the interactive process..."

What about offering alternative, effective accommodation?

Generally, if there is more than one effective accommodation, the proposed regulations provide that an employer has the ultimate discretion to choose the accommodation offered. But the employee's preference should be given primary consideration.

An employer's ultimate discretion to choose a reasonable accommodation is limited as follows.

• The accommodation must provide the employee with equal employment opportunities available to similarly situated employees.
• The employer may not require an employee to accept an accommodation not arrived through the interactive process.
• The employer may not require that an employee take leave if there is a reasonable accommodation that will allow the employee to continue to work, absent undue hardship.

How does paid leave (whether accrued, short-term disability, or another employer benefit) interact with the PWFA?

Under the proposed regulations, employees may choose to use paid or unpaid leave while taking time off as a reasonable accommodation under the PWFA if they are also permitted to do so for other types of leave. But employers are not required to provide additional paid leave under the PWFA beyond what the employee is otherwise entitled.

How quickly must an employer respond to an accommodation request?

The proposed regulations emphasize that pregnancy related limitations are frequently temporary. An unnecessary delay in responding to a reasonable accommodation request may violate the PWFA, even if the accommodation is eventually provided.

Whether there is an unnecessary delay is based on the following factors. Those in red below are unique to the PWFA while the rest are also contained in the ADA.

• The reason for the delay.
• The length of the delay.
• How much the employee or applicant and the covered entity each contributed to the delay.
• Whether the covered entity was engaged in actions related to the reasonable accommodation request during the delay.
• Whether the accommodation was simple or complex to provide. For example, the following accommodations are easy to provide and failure to do so will virtually always result in a finding of unnecessary delay.
  • Allowing an employee to carry water and drink as needed;
  • Permitting additional restroom breaks;
  • Permitting an employee who typically stands to sit or who typically sits to stand; and
  • Eat and drink breaks.
• Whether the employer offered an interim reasonable accommodation during the interactive process. The regulations provide that if an interim reasonable accommodation is offered, delay is more likely to be excused. BUT leave is not considered an appropriate interim reasonable accommodation unless the employee requests to use leave.

But wait, what about the PUMP Act? Isn't that a part of the PWFA?

No. Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) is a separate law but was also part of the Consolidated Appropriations Act signed at the same time as the PWFA. The PUMP Act is not part of the PWFA.

The PUMP Act expands on lactation laws already in existence for nursing mothers and relates to break time and access to a private place to pump at work. The PUMP Act became effective right away with its enforcement provisions effective on April 28, 2023.

The U.S. Department of Labor (DOL) previously issued PUMP Act Guidance and FAQs.

If an employee requests an accommodation involving lactation or pumping, are they covered by the PWFA or the PUMP?

The employee may be covered by both. According to the proposed regulations, employers must provide lactation accommodations under the PWFA absent undue hardship. However, requiring an employee to provide supporting documentation to support a lactation request other than employee self-attestation is generally not considered reasonable.

What should I do during the comment period?

As we mentioned in our prior blog, members of the public have through October 10 to comment on this proposed rule and may do so here: www.regulations.gov. That includes employers.

You should consult with your attorney and consider submitting comments to the EEOC.

Also, check your accommodation policies and procedures and start to modify as necessary to ensure they comply with the PWFA. Although the current regulations are proposed, it does not hurt to get started on revising your policy, so it is ready to go once this is final.

Finally, train your employees, supervisors and managers on employee rights and employer obligations under the PWFA.

Reliance Matrix Can Help!

Reliance Matrix offers employers federal and state leave administration and accommodation services, including pregnancy accommodations under the PWFA, and as applicable, corresponding state laws. For more information, contact your Reliance Matrix account manager or send us a message to [email protected].

Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at [email protected].