by Lana L. Rupprecht, Esq. - AVP Product Compliance
April 24, 2024
As we reported last week, the Equal Employment Opportunity Commission (EEOC) published the final rule and interpretive guidance implementing the Pregnant Workers Fairness Act (PWFA) in the Federal Register on April 19, 2024. Here are the top 10 things you should know now about the final rule and interpretive guidance!
Also, in the next couple of weeks, watch for a pre-recorded Webinar on the PWFA Final Regulations AND multiple mini-segments on key aspects of the PWFA final regulations.
And, that isn't all! Our Pregnancy Protections Whitepaper which discusses the PWFA and much much more as well as an accompanying podcast will be available the last week of May.
And now, back to our Top 10 list:
1. Broad Coverage
The PWFA provides accommodations to qualified employees with limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
The definitions of limitations and pregnancy, childbirth and related medical conditions are defined in the regulations very broadly.
Limitation is defined as a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions and includes modest, minor and/or episodic impediments or problems. This may relate to maintaining an employee's own health or the health of the pregnancy. It may also include when an employee is seeking health care related to pregnancy, childbirth, or a related medical condition.
Pregnancy, childbirth and related medical conditions include but are not limited to current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception), labor, and childbirth (including vaginal and cesarean delivery).
Related medical conditions are conditions relating to the pregnancy or childbirth of the specific employee and are also quite broad. The final regulations list the following (non-exhaustive) examples:
termination of pregnancy, including via miscarriage, stillbirth, or abortion;
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;
menstruation; and
lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections
2. The 40-week Presumption Applies Only to Employees Currently Pregnant
Under the PWFA, an employee is qualified if they can perform the essential functions of the job with or without accommodation. That sounds like nothing new, and it isn't. That is the same test under the Americans with Disabilities Act (ADA)!
What is new is that an employee could also be qualified even if they are temporarily unable to perform an essential job function if: they will be able to perform that function in the near future and the inability to perform the essential function can be reasonably accommodated. This is a significant difference from the ADA!
What does in the near future mean? If the employee is pregnant, it is presumed that the employee will be able to perform the essential function(s) within about 40 weeks of its suspension. 29 CFR Part 1636.3(f)(2)(i)-(iii)
The EEOC explained why it kept the 40-week presumption for pregnant employees in the final rules.
- The purpose of the PWFA is to provide employees with the ability to keep working while they are pregnant and "[g]iven the established length of pregnancy, this goal cannot be met if the employee is not considered qualified simply because they have to suspend an essential function(s) for generally 40 weeks."
- The commission has rulemaking authority per the PWFA to define in the near future.
- "Courts have generally determined that indefinite amounts of time cannot be 'in the near future.' Because pregnancy by definition is not indefinite, defining 'in the near future' to be the length of a pregnancy is consistent with the views of courts and with the purpose of the PWFA."
However, if the employee is not pregnant, but is still covered by the PWFA, the 40-week presumption does not apply. Rather, in the near future is a fact specific determination. Here is what the EEOC said about deciding against a 40-week presumption for issues other than current pregnancy.
The physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions faced by employees other than those who are currently pregnant certainly may be serious and may, in some cases, mean that an employee may seek to have one or more essential functions of the job temporarily suspended. Unlike a current pregnancy, however, there is not a consistent measure of how long these diverse conditions generally will last or, thus, of what "in the near future" might mean in these instances.
See, Final Regulations, Supplementary Information, 1636.3(f)(2)(ii) In the Near Future
3. It is Easy for Employees to Request AccommodationsEmployees requesting a PWFA Accommodation do not need to mention the PWFA, use medical terms, say any specific phrases, follow any particular process or use a specific form. They just need to identify the limitation and state they need an adjustment or change at work. Employees or a representative are responsible for requesting a PWFA accommodation from:
- a supervisor,
- a manager,
- someone who has supervisory authority for the employee or
- who regularly directs the employee's tasks (or the equivalent for an applicant),
- human resources personnel, or
- another appropriate official,
OR by following the steps in the employer's policy to request an accommodation.
Also, an employee is not required to identify the statute (ADA, PWFA etc.) under which they are requesting a reasonable accommodation. "Doing so would require that employees seeking accommodations use specific words or phrases."
29 CFR Part 1636.3(d) and 1636.3(h)(2)
4. Predictable Assessments Are Here to Stay
The final regulations also reserve special treatment for certain modifications requested by the employee while pregnant known as Predictable assessments. They include:
- Carrying and drinking water during the workday,
- Additional restroom breaks,
- Sitting when the job requires standing and vice versa, and
- Taking breaks to eat or drink.
Predictable assessments are modifications identified in the regulations as reasonable in "virtually" all cases and do not impose an undue hardship.
29 CFR Part 1636.3(j)(4) and Interpretive Guidance, 1636.3(j)(4) Undue Hardship—Predictable Assessments, 93-96, 5
Employers may not request supporting documentation for predictable assessments (more on that below). 29 CFR 1636.3(l)(1)(iii). Also, any delay in providing these accommodations may "virtually always result in the finding of unnecessary delay."
Interpretive Guidance, 1636.4(a)(1) Unnecessary Delay in Providing a Reasonable Accommodation
Note, the term "predictable assessments" is also in the ADA regulations listing impairments that will "in virtually all cases" be considered a disability covered by the ADA. "As used in this PWFA rule, however, the term relates to accommodations, not limitations or disabilities."
Interpretive Guidance, 1636.3(j)(4) Undue Hardship—Predictable Assessments, 93, footnote 18
5. Be Very Careful When Asking for Documentation
Employers are limited, in comparison to the ADA, in their ability to obtain supporting documentation. The request itself and the type of documentation requested must be reasonable.
When is a request for documentation reasonable? Only when the employer seeks the minimum that is sufficient to confirm the physical or mental condition and describe the adjustment or change at work due to the limitation. The regulations provide that requests for supporting documentation are NOT reasonable when:
- The limitation and need for reasonable accommodation obvious and the employee provides self-confirmation,
- The employer already has sufficient information or documentation,
- The requested accommodation involves lactation or pumping,
- The pregnant employee requests one of the 4 predictable assessments and the employee provides self-confirmation, or
- If the employer's policy does not otherwise require supporting documentation to support the same type of accommodation for employees not covered by the PWFA.
The self-confirmation is a new concept in the final regulations. This is defined as a simple employee statement confirming that they have a limitation under the PWFA and an adjustment or change at work is needed as a result. The statement can be made in any manner and can be made as part of the request for reasonable accommodation, but an employer may not require any specific type of form or format.
If it is reasonable under the circumstances to seek documentation, then the documentation requested must also be reasonable. It should only describe or confirm:
- the physical or mental condition;
- that the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and
- that a change or adjustment at work is needed for that reason.
Employers needs to take these limitations on requesting documentation under the PWFA seriously. Seeking documentation beyond these parameters and/or continued efforts to obtain more information or supporting documentation from an employee when the employer already has sufficient information/documentation violates the PWFA's anti-coercion and anti-retaliation provisions.
6. Reasonable Accommodations-Examples
Under the PWFA, reasonable accommodations include modifications or adjustments to a job application process, work environment, the manner or circumstances under which the position held or desired is customarily performed, or that enable qualified employees or applicants to enjoy equal benefits and privileges of employment.
A reasonable accommodation also includes the temporary suspension of essential function(s) and/or modifications or adjustments.
The final regulations provide the following examples of reasonable accommodations:
- Making existing facilities readily accessible to and usable by employees
- Job restructuring
- Part-time or modified work schedules
- Reassignment to a vacant position
- Breaks for use of the restroom, drinking, eating, and/or resting
- Acquisition or modification of equipment, uniforms, or devices
- Modifying the work environment
- Providing seating for jobs that require standing, or allowing standing for jobs that require sitting
- Appropriate adjustment or modifications of examinations or policies
- Permitting the use of paid or unpaid leave for reasons including, but not limited to, recovery from childbirth, miscarriage, stillbirth, attend health care appointments or receive health care treatment related to pregnancy, childbirth, or related medical conditions
- Light or modified duty
- Telework or remote work
- Change of work site
- Adjustments to allow an employee to work without increased pain or increased risk to the employee's health or the health of the pregnancy
- Temporarily suspending one or more essential functions of the position
- Providing a reserved parking space if the employee is otherwise entitled to use employer provided parking
- Lactation
- Leave
7. Be Careful with Leave Under the PWFA!
It is a violation of the PWFA to require an employee to take leave if they are able to continue working.
Of course, employees may still request leave as an accommodation and if that is the case, this prohibition would not apply. Also, leave may be required under the PWFA if it is the only reasonable accommodation that does not cause an undue hardship.
If an employee takes leave as a reasonable accommodation, production standards such as sales quotas may need to be adjusted or prorated accordingly.
Also, if leave is an accommodation, employees must be permitted to choose whether to use paid leave (whether accrued, as part of a short-term disability program, or as part of any other employee benefit) or unpaid leave to the same extent that employees using leave for reasons unrelated to pregnancy, childbirth, or related medical conditions are allowed. Employers are not required to provide additional paid leave beyond what employees are already entitled to under other laws or policies.
29 CFR Parts 1636.3(i)(3)(i)-(iii) and 1636.4(d)(1)-(2)
8. Interim Accommodations Are Encouraged
Under the regulations, reasonable accommodations on an interim basis are encouraged if the requested accommodation cannot be provided quickly. Examples when an interim accommodation may be appropriate include:
- there is a sudden onset of a known limitation under the PWFA, sometimes as an emergency, including one that makes it unsafe, risky, or dangerous to continue performing the normal tasks of the job;
- while the interactive process is ongoing, such as when an employer is waiting for the arrival of ordered equipment; or
- when the employee is waiting for the employer's decision on the accommodation request.
These regulations are referring to workplace accommodations not leave. Employers generally should not use unpaid leave as an interim accommodation unless specifically requested by the employee.
Interpretive Guidance, Interim Reasonable Accommodations, 74-80
9. Undue Hardship Factors Are Slightly Different than the ADA
Undue hardship is a significant difficulty or expense for employer operations or finances. This is the same definition as the ADA. But here are some important differences.
First, as mentioned above, if the accommodation requested involves a predictable assessment, then according to the EEOC, in "virtually all cases" such an accommodation would not impose undue hardship.In the Interpretive Guidance, the EEOC states that the predictable assessments provision does not alter the meaning of "undue hardship" and that employers "should still conduct an individualized assessment when one of these accommodations is requested by a pregnant employee to determine if the requested accommodation causes an undue hardship, and employers may still bring forward facts to demonstrate that the proposed accommodation imposes an undue hardship for its business under its own particular circumstances."
Interpretive Guidance, 1636.3(j)(4) Undue Hardship—Predictable Assessments, 93-95
Also, if the requested accommodation involves the temporary suspension of an essential function, the PWFA requires consideration of several factors unique to the PWFA in addition to the same undue hardship factors already identified under the ADA:
- The length of time the employee will be unable to perform the essential function(s),
- Whether, through the regular undue hardship factors, there is work for the employee to accomplish,
- The nature of the essential function(s), including its frequency,
- Whether the employer has temporarily suspended essential functions for other similarly situated employees,
- Whether there are other employees, temporary employees, or third parties who can perform, or be hired to perform, the essential function(s), and
- Whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.
The Interpretive Guidance provides that as with other reasonable accommodations, if the employer can establish that accommodating an employee's temporary suspension of an essential function(s) would impose an undue hardship if extended beyond a certain period of time, the employer is only required to provide that accommodation for the period of time that it does not impose an undue hardship (i.e., accommodation will work for up to 4 months but after that, will impose an undue hardship).
10. Good Examples of PWFA Violations
The Interpretive Guidance, Examples #61-76, has helpful examples of PWFA violations involving:
- Retaliatory Performance Appraisals,
- Improper Surveillance,
- Improperly Seeking Supporting Documentation,
- Dissuading Employees From Requesting an Accommodation,
- Threatening Future Employment,
- Negative References,
- Improper Discipline for Protected Absences,
- Retaliatory Failure to Provide an Interim Reasonable Accommodation,
- Retaliation for Requesting Safety Information,
- Improper Disclosure of Medical Information, and
- Retaliatory Harassment.
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 and other laws affecting workers impacted by pregnancy such as the ADA, PWFA and corresponding state laws. For more information, contact your Reliance Matrix account manager or send us a message to [email protected].