On April 15, 2024, the US Equal Employment Opportunity Commission (EEOC) issued a press release indicating that its Pregnant Workers Fairness Act regulations would be published in the Code of Federal Regulations on April 19, 2024, with an effective date 60 days after publication, June 18. These are the regulations that support the Pregnant Workers Fairness Act (PWFA) which has been enforced by the EEOC since June 27, 2023.
Who is affected?
This act applies to employers of 15 or more employees and requires broad-based and far-ranging accommodation for pregnant workers, previously pregnant workers, or workers who are attempting to get pregnant. The statute (see Section 1636.1) indicates the covered entity must make reasonable accommodation(s) to the known limitations of a qualified employee “related to pregnancy, childbirth or related medical conditions absent undue hardship.”
What do the regulations prohibit?
These regulations prohibit:
- The employer from forcing the employee to accept a specific accommodation including leave if other alternatives are available.
- Various forms of discrimination or retaliation including limitations on job offers and taking other adverse actions.
Besides pregnancy, what conditions are included under the PWFA?
Of particular note to most employers is the broad array of conditions included under pregnancy, childbirth, and related medical conditions. Conditions range from being physically pregnant, a past pregnancy, a potential pregnancy, infertility and fertility treatment, the use of contraception, recovery from various postpartum issues, and a host of potentially related medical conditions including termination of a pregnancy, nerve injuries, endometriosis, sciatica, as well as other conditions.
The employee may not necessarily be required to provide medical certification as part of this process. Medical certification is limited to circumstances when there is a reasonable question as to if a condition is pregnancy-related (see Section 1636.3). Clear or obvious needs do not require medical certification.
Who is a “representative” under the PWFA?
Additionally, the employer can be placed on notice of the need for accommodation, if the employee or the employee’s “representative” “has communicated to the covered entity the need...”
A representative can be anyone, from the employee’s direct family member to a friend, union representative, healthcare provider, or the generic “other.” Notice can be provided in a variety of ways, such as speaking to human resources or an appropriate manager. If an employee is competent, it is anticipated they will be their own representative or must at least approve the representative.
How does requesting an accommodation work?
General and informal notice is anticipated but, the regulations also reference “following the steps in the covered entity’s policy to request an accommodation.” Note an employer cannot place undue burden on the requesting employee. It would be appropriate for covered entities to ensure they have a good policy in place to provide notification of the need for accommodation. The policy should include clear steps and then be publicized to employees.
However, note that the regulations state that the communication does not have to be in writing, or any specific format so mid-level managers and supervisors need to be trained to refer people to the appropriate place when a request is made, whether that request is formal, informal, verbal or in writing.
The regulations note that leave, with or without pay, is considered to be a reasonable accommodation, and a temporary inability to perform the essential functions of the job can be considered a reasonable accommodation if “it can be reasonably accommodated.” The issue is, as always, what is and is not reasonable.
There are significant discussions about what is and is not considered a reasonable accommodation somewhat similar, but broader, to those found in ADA/ADAAA. Significant differences occur specifically relating to the temporary suspension of essential functions. Employers are directed to consider modifications or adjustments that permit the temporary suspension of essential functions. Further “the employee's request does not have to identify a medical condition…or use medical terms.”
Note that certain things are per se, are automatically considered to be reasonable accommodations and these include allowing an employee to:
- Carry or keep water nearby to drink
- Take additional restroom breaks
- Sit/stand as needed
- Take breaks to eat and drink as needed
While a covered entity may seek supporting medical documentation from an employee requesting accommodation, it should request “only when it is reasonable under the circumstances…and in order to determine if the issue arises out of pregnancy, childbirth or related medical conditions.” In many instances, the employee’s statement alone is sufficient including regarding the per se accommodations of breaks, eating, drinking, and bathroom breaks.
In addition to the difficulty employers may face in showing undue hardship, employers may also find themselves in violation if they delay in granting any accommodation. If the accommodation is more complex, the regulations appear to indicate that more time might be granted to assess the accommodation. This would be particularly true if the “covered entity offered the employee an interim reasonable accommodation during the interactive process…”
Do the regulations follow the original proposal?
The regulations do step away from some of the things previously proposed, like requiring paid leave even when all regular paid leave has been exhausted. Unpaid leave remains the baseline unless there is another policy such as a disability policy or paid maternity leave available. It is notable that the comments and then the interpretive guidance far outstrip the regulation itself.
Of particular note in the guidance are statements that “the PWFA does not create a right to a reasonable accommodation based on an individual’s association with someone else who may have covered limitations.” This means the regulations would not operate to protect “parenting” or other similar requests for accommodation. Comments also note that pregnancy and childbirth can always give rise to new concerns and problems, and as such, the accommodation process is not “one and done.”
Although the EEOC somewhat surprisingly states that confirming the need for accommodation will be a “straightforward” process, the examples further note that there can be instances where issues may be related to pregnancy, the pregnancy is over, but the issues do not resolve. Then, it becomes an interactive longer-term process – it’s a determination as to whether or not the continuing issues are related to pregnancy or childbirth. If it is not related it would then move to an ADA/ADAAA interactive assessment. Employers are not allowed to consider mitigating measures in determining whether or not accommodation must be provided.
What about leave and performance of essential functions?
In several instances, the regulation states that the performance of essential functions could be suspended, or job-protected leave required if the employee could resume essential functions of the position “in the near future.” The regulations indicate that the ADA’s reliance on leave, which is open-ended as being unreasonable, will not apply to leave or suspension of essential function during a pregnancy. The EEOC states pregnancy will end at 40 weeks, therefore near future would be assessed “to mean generally 40 weeks.” However, the EEOC further notes that that does not mean that it must always be suspended for 40 weeks, and the employer could still assert undue hardship. Further, “for conditions other than a current pregnancy, the commission is not setting the specific length of time for “in the near future” because unlike a current pregnancy there is not a consistent measure of how long these diverse conditions can generally last…”
The Big Picture
This is a complex regulation for a necessarily complicated and uncertain process. It is anticipated that there will be significant litigation to further refine the parameters of the regulation. Interim steps employers can take include employee education – explaining who they should go to when requesting accommodation, managerial training to know they need to go to HR or another designee, and developing a base understanding of the elements such as the “automatic” accommodations.
