The EEOC’s proposed PWFA regulations also contain an Appendix of the EEOC’s Interpretative Guidance for the regulations, much like the initial ADA regulations. Today, I shall focus on what conditions/impairments are covered, what constitutes a request for an accommodation and the standard for evaluating accommodation requests, including leaves of absence and the temporary elimination of essential job functions, in the Interpretative Guidance.
What Conditions or Impairments Are Covered and Should Be
Accommodated?
§ 1636.3
Definitions - specific to the PWFA. (a)(2) Limitation. Pregnant
workers (which as will be discussed, includes in the EEOC’s opinion,
pre-pregnancy, current pregnancy and post-pregnancy) are entitled to an accommodation
even if the issue does not rise to the level of an ADA disability and is not in
any way severe. Why? First, the statute specifically says that it
does not need to be a disability.
Second, if it was a disability, it would already be covered by the ADA. This statute wants women to maintain their
health and that of a future or current pregnancy. “Practically, allowing for accommodations to
maintain health and attend medical appointments also increases the chances that
the accommodation is minor and may decrease the need for a more extensive
accommodation because the worker may be able to avoid more serious
complications.” In short, “whether a
worker has a physical or mental condition related to, affected by, or arising
out of pregnancy, childbirth, or related medical conditions shall be construed
broadly to the maximum extent permitted by the PWFA.”
“The list in the regulation for the definition of “pregnancy, childbirth, or related medical conditions” includes current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.”
“Related medical conditions” include conditions that existed before pregnancy or childbirth (and for which an individual was perhaps receiving reasonable accommodation under the ADA) but that may be or have been exacerbated by pregnancy or childbirth, such that additional or different accommodations are needed. For example, a worker who was using unpaid leave as an accommodation to attend treatment for anxiety may experience a worsening of anxiety due to pregnancy or childbirth and request an additional accommodation. A worker who received extra breaks to eat or drink due to Type 2 diabetes before pregnancy may need additional accommodations during pregnancy to monitor and manage the diabetes more closely and avoid or minimize adverse health consequences to the worker or their pregnancy. A worker may have high blood pressure that can be managed prior to the pregnancy, but once the worker is pregnant, the high blood pressure poses a risk to the pregnancy and the worker needs bed rest. In these situations, an employee could request an additional accommodation under the ADA or an accommodation under the PWFA.
Here are some of the “obvious” physical or mental conditions
related to, affected by, or arising out of pregnancy, childbirth, or related
medical conditions:
· Pain when standing for long period of time
· Cannot lift more than 20 pounds
· Needs to attend prenatal healthcare appointments
· Needs to attend therapy sessions for post-partum depression
· Limiting exposure to second hand smoke
· Leave of absence to obtain IVF treatment in order to get pregnant
· Fatigue
· Back pain
Because some of these issues also exist without pregnancies,
employers are permitted to request medical documentation showing that the
request is related to pregnancy: “To the
extent that a covered entity 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, using the
principles set out in section 1636.3(l) about the interactive process and
supporting documentation.”
Even when the issue is not covered by the PWFA, it may be
covered by the ADA. Under the PWFA, “to
be a ‘related medical condition’ as applied to the specific employee or
applicant in question, the condition must relate to pregnancy or childbirth.
Some of the “related medical conditions” listed in the regulation are
conditions that commonly, but not necessarily, relate to pregnancy or
childbirth. If a worker has a condition that is listed in the regulation but,
in their situation, it does not relate to pregnancy or childbirth, the
condition shall not be covered under the PWFA. For example, if a worker has
high blood pressure but that medical condition is not related to pregnancy or
childbirth, a physical or mental condition related to the worker’s high blood
pressure is not eligible for an accommodation under the PWFA.”
Requesting Accommodations under the PWFA
[A] request for a reasonable accommodation under the PWFA, as with the ADA, does not need to be in writing or use any specific words or phrases. Instead, employees or applicants may request accommodations in conversation or may use another mode of communication to inform the employer. A covered entity may choose to write a memorandum or letter confirming a request or may ask the employee or applicant to fill out a form or submit the request in written form. However, the covered entity cannot ignore or close the initial request because that initial request is sufficient to place the employer on notice. Additionally, even though it is not required, an employee may choose email or other similar written means to submit a request for an accommodation to ensure clarity and create a record.
These are the examples provided by the EEOC of what
constitutes a PWFA accommodation request:
· A pregnant employee tells her supervisor, “I’m having trouble getting to work at my scheduled starting time because of morning sickness.”
· An employee who gave birth three months ago tells the person who assigns her work at the employment agency, “I need an hour off once a week for treatments to help with my back problem that started during my pregnancy.”
· An employee tells a human resources specialist that they are worried about continuing to lift heavy boxes because they are concerned that it will harm their pregnancy.
· An employee’s spouse, on the employee’s behalf, requests light duty for the employee because the employee has a lifting restriction related to pregnancy; the employee’s spouse uses the employer’s established process for requesting a reasonable accommodation or light duty for the employee.
· An employee verbally informs a manager of her need for more frequent bathroom breaks, explains that the breaks are needed because the employee is pregnant, but does not complete the employer’s online form for requesting accommodation.
· An employee tells a supervisor that she needs time off to recover from childbirth.
Employers are strongly encouraged to train their front line
supervisory staff to recognize an accommodation requests because there is
liability for delaying an accommodation even if the accommodation is ultimately
granted later.
Evaluating Accommodation Requests
The regulation sets up two different standards to determine
if a worker is qualified for an accommodation.
One applies generally and one only applies to temporary (i.e., 40 weeks
at a time) elimination of essential job functions which do not impose an undue
hardship.
The general standard is similar to and interpreted in light of the
ADA:
(f) Qualified employee or applicant
with respect to an employee or applicant with a known limitation under the PWFA
means:
(1) An employee or applicant
who, with or without reasonable accommodation, can perform the essential
functions of the employment position.
By way of example, “a pregnant attorney who uses the firm’s
established telework program to work at home during morning sickness does not
need an accommodation to perform the essential functions of the job and therefore
is qualified without a reasonable accommodation. A pregnant cashier who needs a
stool to perform the job will be qualified with the reasonable accommodation of
a stool.”
Leaves of Absence
With respect to a leave of absence as an accommodation, the
regulation provides as follows in §1636.3(f)(1)(i):
(i) With respect to leave as
an accommodation, the relevant inquiry is whether the
employee is reasonably expected to be able to perform the essential functions,
with or without a reasonable accommodation, at the end of the leave,
if time off is granted, or if the employee is qualified as
set out in paragraph (f)(2) of this section after returning from leave.
The EEOC explains that “” the
relevant inquiry is whether the employee would be able to perform the essential
functions of the position, with or without reasonable accommodation (or, if
not, if the inability to perform the essential function(s) is for a temporary
period, the essential function(s) could be performed in the near future, and
the inability to perform the essential function(s) can be reasonably
accommodated [under the second part]), with the benefit of a period of
intermittent leave, after a period of part-time work, or at the end of a period
of leave or time off.”
By way of example, the EEOC describes “an employee who
needs some form of leave to recover from a known limitation caused, for
example, by childbirth or a miscarriage, can meet the definition of “qualified”
because it is reasonable to conclude that once they return from the period of
leave (or during the time they are working if it is intermittent leave) they
will be able to perform the essential functions of the job, with or without
additional reasonable accommodations or will be qualified under the second part
of the PWFA definition that is described in the next subsection.”
Under that second subsection, the EEOC explained:
.. . “leave related to recovery from pregnancy, childbirth, or related medical conditions does not count as time when an essential function is suspended and thus is not relevant for the second prong of the definition of qualified. If an individual needs leave as a reasonable accommodation under the PWFA or, indeed, any reasonable accommodation other than the temporary suspension of an essential function, only the first definition of “qualified” is relevant. In the case of leave, the question would be whether the individual, after returning from the requested period of leave, would be able to perform the essential functions of the position with or without reasonable accommodation (or, if not, if the inability to perform the essential function(s) is for a temporary period, the essential function(s) could be performed in the near future, and the inability to perform the essential function(s) can be reasonably accommodated). Furthermore, for some workers, leave to recover from childbirth will not require a reasonable accommodation because they have a right to leave under Federal, State, or local law or as part of an employer policy. Thus, for the purpose of determining whether the employee is qualified under the second prong of “qualified” regarding the suspension of an essential function, the Commission does not intend for employers or workers to count time on leave for recovery from childbirth.
The EEOC believes that unpaid leaves of absence must be
provided as a reasonable accommodation even if the employee has exhaust their
FMLA entitlement, etc.
Leave, including intermittent leave, may be a reasonable accommodation even if the covered entity does not offer it as an employee benefit. If an employee requests leave as an accommodation or if there is no other reasonable accommodation that does not cause an undue hardship, the covered entity must consider providing leave as a reasonable accommodation under the PWFA, even if the employee is not eligible for leave under the employer's leave policy or the employee has exhausted the leave the covered entity provides as a benefit (including leave exhausted under a workers’ compensation program, the FMLA, or similar State or local laws).
The rule also provides that leave to recover from childbirth, miscarriage, stillbirth, or other related conditions is a potential reasonable accommodation (absent undue hardship). The rule further explains that workers protected by the PWFA 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 the covered entity allows employees using leave for reasons unrelated to pregnancy, childbirth, or related medical conditions to choose between these various types of leave. However, as under the ADA, an employer is not required to provide additional paid leave under the PWFA beyond the amount to which the employee is otherwise entitled.
The EEOC would also require production standards to be relaxed
when a worker takes a leave of absence (of any length) under the PWFA:
if the reasonable accommodation is leave, the production standard may need to be prorated to account for the reduced amount of time the employee worked. For example, if a call center employee with a known limitation requests and is granted two hours of leave in the afternoon for rest, the employee’s required number of calls may need to be reduced proportionately, as could the employee’s pay.
As under the ADA, an employee with a known limitation who is granted leave as a reasonable accommodation under the PWFA is entitled to return to their same position unless the employer demonstrates that holding open the position would impose an undue hardship. Likewise, an employer must continue an employee’s health insurance benefits during their leave period to the extent that it does so for other employees in a similar leave status.
Undue Hardship
As with the ADA, if the employer can show undue hardship,
it can lawfully deny the requested leave of absence (assuming that it would not
be covered by the FMLA). Reasons that could
support an undue hardship denial include “length, frequency, or unpredictable
nature of the time off that was requested.”
“As with the ADA, in determining whether leave under the PWFA causes an
undue hardship, an employer may consider leave that the employee has already
used under, for example, the FMLA.” The EEOC
then cites in a footnote to the following examples from its 2016
Technical Assistance on Leave as a Reasonable Accommodation:
Example 17: An employee has exhausted her FMLA leave but requires 15 additional days of leave due to her disability. In determining whether an undue hardship exists, the employer may consider the impact of the 12 weeks of FMLA leave already granted and the additional impact on the employer's operations in granting three more weeks of leave.
Example 18: An employee has exhausted both his FMLA leave and the additional eight weeks of leave available under the employer's leave program, but requires another four weeks of leave due to his disability. In determining whether an undue hardship exists, the employer may consider the impact of the 20 weeks of leave already granted and the additional impact on the employer's operations in granting four more weeks of leave.
Temporary Elimination of Essential Job Functions
Section 1636.3(f)(2) sets out a secondary standard for evaluating
accommodation requests. This standard
eliminates the general ADA rule that an employer need not eliminate an
essential job function as a reasonable accommodation (except that courts have
required it for temporary attendance and leave of absences):
(2) Additionally, an employee or applicant shall be considered qualified if they cannot perform one or more essential functions if:
(i) Any inability to
perform an essential function is for a temporary period, where “temporary”
means lasting for a limited time, not permanent, and may extend beyond “in
the near future”;
(ii) The essential function(s) could
be performed in the near future, where “in the near future” means the
ability to perform the essential function(s) will generally resume within
forty weeks of its suspension; and
(iii) The inability to perform the
essential function can be reasonably accommodated. This may be
accomplished by temporary suspension of the essential function(s) and the
employee performing the remaining functions of their position or, depending on
the position, other arrangements, including, but not limited to: the employee
performing the remaining functions of their position and other functions
assigned by the covered entity; the employee performing the functions of a
different job to which the covered entity temporarily transfers or assigns the
employee; or the employee being assigned to light duty or modified duty or
participating in the covered entity’s light or modified duty program.
This secondary standard only applies when the worker cannot
perform an essential job function because of a known limitation under the PWFA.
“It is not relevant in any other circumstance.” Temporary is construed as anything
other than permanent or for a limited time.
It may extend beyond the near future.
“The rule defines “in the near future” to mean
generally forty weeks from the start of the temporary suspension of an
essential function. This is based on the time of a full-term pregnancy (forty
weeks).” Nonetheless, the EEOC also
uses the 40 week “temporary standard” even for when the worker is not or is no
longer pregnant because “there may be physical or mental conditions related to,
affected by, or arising out of pregnancy, childbirth, or related medical
conditions for which workers may seek the temporary suspension of an essential
function when the worker is not currently pregnant. These conditions include
pre-pregnancy limitations such as infertility, and post-pregnancy
limitations such as acute cardio-vascular problems that are a consequence of
the pregnancy. Although the length of pre- and post- partum physical or mental
conditions will vary, the Commission proposes using “generally forty weeks” to
measure whether the worker meets the “in the near future” requirement in the
second definition of “qualified” in every situation where the reasonable
accommodation sought under the PWFA is the temporary suspension of one or more
essential functions.” Another factor is that
a mother’s mortality seems most at risk following birth than before it.
In any event, the employer may still deny a lengthy accommodation
request under this standard if it poses an undue hardship.
The Commission emphasizes that the definition in this section does not mean that the essential function(s) must always be suspended for forty weeks, or that if an employee seeks the temporary suspension of an essential function(s) for forty weeks it must be automatically granted. The actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires, and the covered entity always has available the defense that it would create an undue hardship. However, the mere fact that the temporary suspension of one or more essential functions is needed for any time period up to and including generally forty weeks will not, on its own, render a worker unqualified under the PWFA.
Further, the Commission recognizes that workers may need an essential function temporarily suspended because of pregnancy; may take leave to recover from childbirth; and, upon returning to work, may need the same essential function or a different one temporarily suspended due to a new or different physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
With respect to measuring the commencement of the 40 weeks,
it restarts with each accommodation request. It would be difficult, if not impossible, for
a woman to predict during pregnancy what accommodations she will need after
returning from giving birth.
[T]he determination of “in the near future” shall be made when the employee asks for each accommodation that requires the suspension of one or more essential functions. Thus, a worker who is three months pregnant seeking an accommodation of the temporary suspension of an essential function will meet the definition of “qualified” for “in the near future” because the pregnancy will be over in less than forty weeks. When the worker returns from leave after childbirth, if the worker needs an essential function temporarily suspended, they will meet the definition of “qualified” for “in the near future” if they could perform the essential function within forty weeks of the suspension. In other words, for “in the near future,” the forty weeks would restart once the pregnancy is over and the worker returns to work after leave.
Finally, the standard requires that the job function
elimination can be reasonably accommodated without undue hardship. The EEOC explains:
For some positions, this may mean that one or more essential functions are temporarily suspended, with or without reassignment to someone else, and the employee continues to perform the remaining functions of the job. For other jobs, some of the essential functions may be temporarily suspended, with or without reassignment to someone else, and the employee may be assigned other tasks to replace them. In yet other situations, one or more essential functions may be temporarily suspended, with or without reassignment to someone else, and the employee may perform the functions of a different job to which the employer temporarily transfers or assigns them, or the employee may participate in the employer’s light or modified duty program. Throughout this process, as with other reasonable accommodation requests, an employer may need to consider more than one alternative to identify a reasonable accommodation that does not pose an undue hardship. Depending on how the temporary suspension is accomplished, the covered entity may have to prorate or change a performance or production standard so that the accommodation is effective.
As previously mentioned, the conditions which must be
accommodated under the PWFA do not need to constitute disabilities.
Under the PWFA and the rule, a worker may seek a reasonable accommodation in order to alleviate increased pain or increased risk to health that is attributable to the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that has been communicated to the employer (the known limitation).
This PWFA accommodation standard would be applicable in the following
circumstances:
· a pregnant construction worker is told by their health care provider to avoid lifting more than 20 pounds during the second through ninth months of pregnancy, an essential function of the worker’s job requires lifting more than 20 pounds, and there is not a reasonable accommodation that will allow the worker to perform that function without lifting more than 20 pounds;
· a pregnant police officer is unable to perform patrol duties during the third through ninth months of the pregnancy, patrol duties are an essential function of the job, and there is not a reasonable accommodation that will allow the worker to perform the essential functions of the patrol position.
· Launa has been working as a landscaper for two years, and her job regularly involves moving bags of soil that weigh 35-40 pounds. Launa becomes pregnant and lets her supervisor know that she has a lifting restriction of 20 pounds because of her pregnancy . . . If there is no device or other reasonable accommodation (or the device or other reasonable accommodation is too expensive or otherwise causes undue hardship for the employer) the employer must consider whether Launa meets the second definition of qualified: whether (1) the inability to perform the essential function is temporary, (2) Launa could perform the essential function in the near future, and (3) the inability to perform the essential function can be reasonably accommodated.
· One month into a pregnancy, Akira, a worker in a paint manufacturing plant, is told by her health care provider that she should avoid certain chemicals for the remainder of the pregnancy. One of the essential functions of this job involves regular exposure to these chemicals. Akira talks to her supervisor, explains her limitation, and asks that she be allowed to switch duties with another worker whose job does not require the same exposure but otherwise involves the same functions. There are numerous other tasks that Akira could accomplish while not being exposed to the chemicals.
· Two months into a pregnancy, Lydia, a delivery driver, is told by her health care provider that she should not lift more than 20 pounds. Lydia routinely has to lift 30-40 pounds as part of the job. She discusses the limitation with her employer. The employer is unable to provide Lydia with assistance in lifting packages, and Lydia requests placement in the employer’s light duty program, which is used for drivers who have on-the-job injuries.
· Celia is a factory worker whose job requires her to move boxes that weigh 50 pounds regularly. Prior to her pregnancy, Celia occasionally felt pain in her knee when she walked for extended periods of time. After returning to work after having a cesarean section, Celia’s health care provider says she should limit the tasks that require moving boxes to no more than 30 pounds for three months because heavier lifting could increase the risk to her health and recovery. Celia can seek an accommodation that would help her lift between 30 and 50 pounds because it is needed for her known limitation related to childbirth. However, the PWFA would not require the employer to provide an accommodation regarding Celia’s knee pain because that situation is not attributable to Celia’s known limitation, unless there is evidence that the pain in walking was exacerbated by Celia’s pregnancy, childbirth, or related medical conditions. [The ADA might be applicable if the PWFA is not and would not require the elimination of an essential job function.]
· Lucille has opioid use disorder that she controls with medication. After giving birth, she experiences postpartum depression. As a result, she is put on an additional medication that she must take with food, and she starts therapy with a new provider. Under the PWFA, Lucille requests that she be allowed to take breaks to eat when she needs to take her medication and that she be allowed to use intermittent leave to attend her therapy appointments.
· Jackie’s position at a fabrication plant involves working with certain chemicals, which Jackie thinks is the reason she has a nagging cough and chapped skin on her hands. Once she becomes pregnant, Jackie seeks the accommodation of a temporary suspension of an essential function of working with the chemicals because the chemicals create an increased risk to her pregnancy. The employer provides the accommodation. After Jackie gives birth and returns to work, she no longer has any known limitations. Thus, she can be assigned to work with the chemicals again even if she would rather not do that work, because the PWFA only requires an employer to provide an accommodation that is needed due to the known limitation related to pregnancy, childbirth, or related medical conditions.
· Margaret is a retail worker who is pregnant. Because of her pregnancy, Margaret feels pain in her back and legs when she has to move stacks of clothing from one area to the other, which is one of the essential functions of her position. She can still manage to move the clothes, but, because of the pain, she requests a cart to use when she is moving the garments.
The employer may still deny the request if it can show
undue hardship. “If there is no
reasonable accommodation that allows the worker to continue to work, absent
undue hardship, the employee may be qualified for leave as a reasonable
accommodation if leave does not cause an undue hardship.”
More to follow tomorrow.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
