On August 11, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published proposed regulations in the Federal Register for implementing the PWFA. The EEOC has invited the public to comment on the proposed regulations during a comment period that will close on October 10, 2023. While the regulations are proposed, PWFA has been in full effect since June 27, 2023.
The PWFA requires covered employers to provide a reasonable accommodation for a qualified employee’s or applicant’s known limitations arising out of, related to, or affected by pregnancy, childbirth, or related medical conditions. This is true even if the pregnancy is uncomplicated, if the limitation is episodic in nature, or if the condition was pre-existing but was exacerbated by the pregnancy or childbirth. The PWFA also aims to prevent covered employers from taking adverse actions, retaliating, forcing unreasonable accommodations, and interfering with an individual’s rights under the PWFA. The PWFA is drafted to mirror many aspects of the ADA, including its well-known interactive process and standard of an undue burden. It is also specifically designed to address limitations in coverage left by Title VII of the Civil Rights Act, the Americans with Disabilities Act, or the Family and Medical Leave Act. The PWFA does not require employees to put forth a similarly situated employee, does not require an employee to have a qualifying disability, and applies to employers with at least 15 employees.
Like the ADA, the PWFA protects “qualified” employees or applications who, with or without reasonable accommodation can,perform the essential functions of their job. However, under the PWFA, an employee or applicant can be “qualified” even if they cannot perform one or more essential functions of the job if: the inability to perform the essential function(s) is “temporary,” the worker could perform the essential function(s) “in the near future,” and the inability to perform the essential function(s) can be reasonably accommodated. The terms “temporary,” “in the near future,” and “can be reasonably accommodated” are not defined in the PWFA, but the proposed regulations put forth a definition of generally 40 weeks. This does not mean that the essential function(s) must always be suspended for 40 weeks, or that if an employee seeks the temporary suspension of an essential function(s) for 40 weeks it must be automatically granted.
Employers are required to accommodate “known limitations” related to pregnancy, childbirth, or related medical conditions. A known limitation is defined in the PWFA as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the covered entity whether or not such condition meets the definition of disability” under the ADA. The employee does not need to reference the PWFA or use any magic words for the limitation to be considered known when communicating their need to their employer.
In addition to needs the employee points out, employers must accommodate employee limitations that the employer should know exist. For example, if an employer is aware that an employee is pregnant and the employee is taking frequent breaks, the employer must accommodate that employee without asking for documentation or “proof” that the employee is pregnant. The PWFA also has no severity requirement and any accommodation, even one for an uncomplicated pregnancy, should be considered.
To the extent an employer has reasonable concerns about whether a physical or mental condition or limitation is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” the employer may request information from the employee regarding the connection and, when applicable, reasonable supporting documentation. However, the EEOC anticipates that the connection will be a straightforward determination that can be accomplished through a conversation between the employer and the employee as part of the interactive process and without the need for the employee to obtain documentation or verification.
As with much of the PWFA, the guidelines for a reasonable accommodation is follow what has already been laid out in the implementation of the ADA. The EEOC’s Proposed Regulations list examples of reasonable accommodations under the PWFA, which include frequent breaks, sitting/standing, schedule changes (including part-time work and unpaid leave), telework, and light duty. Employers may also be required to accommodate a worker’s inability to perform one or more essential functions of a job by temporarily suspending that function if the employee could perform the job in the near future. Additionally, the EEOC has identified four accommodations that should be granted in almost every circumstance, in part, because they do not impose an undue hardship. These accommodations include allowing employees to carry and drink water as needed, additional restroom breaks, standing and sitting options, and allowing breaks as needed to eat and drink.
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 and relies on the same standard already set out under the ADA. Rather than an all-or-nothing approach, if the employer can only provide part of the reasonable accommodation absent undue hardship, the employer must do so up to the point of undue hardship. In determining whether an accommodation would impose an undue hardship on a covered employer, employers may consider the nature and net cost of the accommodation, the overall financial resources of the facility involved including the effect on expenses and resources, the overall size and resources of the business, the type of operations of the covered employer is engaged in, and the impact of the accommodation on the workforce and workflow.
The regulations also include additional factors that may be considered when determining if the temporary suspension of an essential function causes an undue hardship. These additional factors in the proposed rule include the length of time the essential function will be suspended, what the employee will do in the meantime, how important the essential function was including the nature and frequency of it, whether the employer has suspended this function for other employees, whether the employer can assign the essential function to another employee, temporary employee, or third party for the time being, and whether the essential function can be postponed or remain unperformed for any length of time. Accordingly, accommodation requests under the PWFA, like ADA accommodations, should be examined on a case-by-case basis.
In addition to anti-retaliation provisions, employers are specifically prohibited from delaying the implementation of an accommodation or the interactive process. This may include failing to consider a temporary suspension of one or more essential job functions, asserting an undue hardship based only on an assumption or speculation, denying an accommodation based on a lack of supporting documentation, or denying an employee’s preferred accommodation in favor of another, similar accommodation, including forcing an employee to take paid or unpaid leave if another reasonable accommodation is available.
What Employers Should Know
The procedures for filing an EEOC charge or claim under the PWFA, as well as the available remedies and ability to obtain damages, are the same as under Title VII and the ADA. As such, employers should take extra care when dealing with pregnancy-related accommodation requests and ensure that their interactive process and documentation requirements are in line with the Proposed Regulations. Employers should also post the updated EEO poster, which was published when the PWFA went into effect and can be found here. Finally, employers should also keep an eye out for regulations provided by the EEOC, which are set to be released no later than next July.
Want to Comment?
While you may comment on any part of the Rule, the EEOC is specifically seeking comments on several areas, including:
- Whether who the employee may make their request for accommodation known to should be expanded or limited;
- Whether there should be different, more, or fewer accommodations that should almost always be granted;
- Potential situations where an employer should be required to conduct an examination into an employee and what the effect of that may be;
- Whether “in the near future” should mean one year or 40 weeks;
- Whether the PWFA should address essential functions that cannot be temporarily suspended and what those functions are;
- Reasonable accommodations for disabilities that are exacerbated by pregnancy including modification of existing accommodations for a new disability or a new position;
- Whether the current documentation requirements and limitations should be modified;
- Instances where an employer should be able to require an employee to accept a specific accommodation; and
- Any research or comments on how this may benefit the workforce.
If your organization is looking to comment on these proposals, we encourage you to reach out to Dykema’s Labor and Employment team who can assist you and submit those comments on your behalf.