EEOC's Interpretative Guidance for Proposed PWFA Guidance Expand Mandatory Accommodations Beyond ADA Requirements

There is yet more to the EEOC’s proposed Interpretative Guidance for the EEOC’s proposed PWFA regulations in connection with Monday’s proposed regulations.  Potential accommodations include reserved parking spaces for pregnant employees, temporarily transferring employees to a city with a different medical center, mandatory maternity leave, etc. There is also information about the interactive process, examples of the four types of accommodations which must be granted “virtually all” of the time, and examples of what could constitute an undue hardship justifying the denial of a requested accommodation. 

Like the ADA, there are typical accommodations which employers can expect to provide to pregnant workers, including the following:

·        Frequent breaks. . . .  For example, a pregnant employee might need more frequent breaks due to shortness of breath; an employee recovering from childbirth might need more frequent restroom breaks or breaks due to fatigue because of recovery from childbirth; or an employee who is lactating might need more frequent breaks for water or food.

·        Sitting/Standing. . .  Reasonable accommodation of these needs might include, but is not limited to, policy modifications and the provision of equipment, such as seating, a sit/stand desk, or anti-fatigue floor matting, among other possibilities.

·        Schedule changes, part-time work, and paid and unpaid leave. . . .  Additionally, . . . leave for medical treatment can be a reasonable accommodation. By way of example, an employee could need a schedule change to attend a round of IVF appointments to get pregnant; a part-time schedule to address fatigue during pregnancy; or additional unpaid leave for recovery from childbirth, medical treatment, post-partum treatment or recuperation related to a cesarean section, episiotomy, infection, depression, thyroiditis, or preeclampsia.

·        Telework. Telework or “work from home” has been recognized by the EEOC as a potential reasonable accommodation.  Telework could be used to accommodate, for example, a period of bed rest or a mobility impairment.

·        Parking. Providing reserved parking spaces if the employee is otherwise entitled to use employer-provided parking may be reasonable accommodation to assist a worker who is experiencing fatigue or limited mobility because of pregnancy, childbirth, or related medical conditions.

·        Light duty.  . . .

·        Making existing facilities accessible or modifying the work environment. Examples of reasonable accommodations might include allowing access to an elevator not normally used by employees; moving the employee’s workspace closer to a bathroom; providing a fan to regulate temperature; or moving a pregnant or lactating employee to a different workspace to avoid exposure to chemical fumes. As noted in the regulation, this also may include modifications of the work environment to allow an employee to pump breast milk at work.

·        Job restructuring. Job restructuring might involve, for example, removing a marginal function that required a pregnant employee to climb a ladder or occasionally retrieve boxes from a supply closet.

·        Temporarily suspending one or more essential functions. For some positions, this may mean that one or more essential functions are temporarily suspended, and the employee continues to perform the remaining functions of the job. For others, the essential function(s) will be temporarily suspended, and the employee may be assigned other tasks. For others, the essential function(s) will be temporarily suspended, and the employee may perform the functions of a different job to which the employer temporarily transfers or assigns them. For yet others, the essential function(s) will be temporarily suspended, and the employee will participate in the employer’s light or modified duty program.

·        Acquiring or modifying equipment, uniforms, or devices. Examples of reasonable accommodations might include providing uniforms and equipment, including safety equipment, that account for changes in body size during and after pregnancy, including during lactation; providing devices to assist with mobility, lifting, carrying, reaching, and bending; or providing an ergonomic keyboard to accommodate pregnancy-related hand swelling or tendonitis.

·        Adjusting or modifying examinations or policies. Examples of reasonable accommodations include allowing workers with a known limitation to postpone an examination that requires physical exertion. Adjustments to policies also could include increasing the time or frequency of breaks to eat or drink or to use the restroom.

Here are some examples of accommodations which must be provided absent an undue hardship which the EEOC provided:

·        Unpaid Leave for Recovery from Childbirth: Sofia, a custodian, is pregnant and will need six to eight weeks of leave to recover from childbirth. Sofia is nervous about asking for leave so Sofia asks her mother, who knows the owner, to do it for her. The employer has a sick leave policy but no policy for longer periods of leave. Sofia does not qualify for FMLA leave.

·        Temporary Transfer to Different Location: Katherine, a budget analyst who has cancer, is also pregnant, which creates complications for her treatment. She asks the manager for a temporary transfer to an office in a larger city that has a medical center that can address her medical needs due to the combination of cancer and pregnancy.

·        Telework: Gabriela, a billing specialist in a doctor’s office, experiences nausea and vomiting beginning in her first trimester of pregnancy. Her doctor believes the nausea and vomiting will pass within a couple of months. Because the nausea makes commuting extremely difficult, Gabriela makes a verbal request to her manager stating she has nausea and vomiting due to her pregnancy and requests that she be permitted to work from home for the next two months so that she can avoid the difficulty of commuting. The billing work can be done from her home or in the office.

·        Temporary Suspension of an Essential Function: Nisha, a nurse assistant working in a large elder care facility, is advised in the fourth month of pregnancy to stop lifting more than 25 pounds for the rest of the pregnancy. One of the essential functions of the job is to assist patients in dressing and bathing, and moving them from or to their beds, tasks that typically require lifting more than 25 pounds. Nisha sends an email to human resources asking that she not be required to lift more than 25 pounds for the remainder of her pregnancy and requesting a place in the established light duty program under which workers who are hurt on the job take on different duties while coworkers take on their temporarily suspended duties.

[If] the employer establishes the light duty program is limited to 10 slots and that all 10 slots are filled for the next 6 months. In these circumstances, the employer must consider other possible reasonable accommodations, such as the temporary suspension of an essential function without assigning Nisha to the light duty program, or job restructuring outside of the established light duty program. If such accommodations cannot be provided without undue hardship, then the employer must consider a temporary reassignment to a vacant position for which Nisha is qualified, with or without reasonable accommodation. For example, if the employer has a vacant position that does not require lifting patients which Nisha could perform with or without a reasonable accommodation, the employer must offer her the temporary reassignment as a reasonable accommodation, absent undue hardship.

·        Assistance with Performing an Essential Function: Mei, a warehouse worker, requests via her employer’s online accommodation process that a dolly be provided to assist her in moving items that are bulky to accommodate her postcesarean section medical restrictions for three months.

·        Temporary Suspension of Essential Function(s): Darina, a pregnant police officer in the third month of pregnancy, talks to human resources about being taken off of patrol and put on light duty for the remainder of her pregnancy to avoid physical altercations such as subduing suspects that may harm her pregnancy. The department has an established light duty program that it uses for officers with injuries that occurred on the job.

·        Temporary Suspension of Essential Function(s): Rory works in a fulfillment center where she is usually assigned to a line where she has to move packages that weigh 20 pounds. After returning from work after giving birth, Rory has a lifting restriction of 10 pounds due to sciatica during her pregnancy. The restriction is for 12 weeks. The employer does not have an established light duty program. There are other lines in the warehouse that do not require lifting more than 10 pounds and some of the packages on Rory’s usual line weigh less than 10 pounds.

·        Unpaid Leave: Tallah, a newly hired cashier at a small bookstore, has a miscarriage in the third month of pregnancy and asks a supervisor for ten days of leave to recover. As a new employee, Tallah has only earned 2 days of paid leave. The employer is not covered by the FMLA and does not have a company policy regarding the provision of unpaid leave, but Tallah is covered by the PWFA.

·        Unpaid Leave for Prenatal Appointments: Margot started working at a retail store shortly after she became pregnant. She has an uncomplicated pregnancy. Because she has not worked at the store very long, she has earned very little leave and is not covered by the FMLA. In her fifth month of pregnancy, she asks her supervisor for the reasonable accommodation of unpaid time off beyond the leave she has earned to attend her regularly scheduled prenatal appointments.

·        Unpaid Leave for Medical Appointments: Taylor, a newly hired member of the waitstaff, requests time off to attend therapy appointments for postpartum depression. As a new employee, Taylor has not yet accrued sick or personal leave and is not covered by the FMLA. Taylor asks her manager if there is some way that she can take time off.

·        Unpaid Leave or Schedule Change: Claudine is six months pregnant and needs to have regular check-ups. The clinic where Claudine gets her health care is an hour drive away, and they frequently get backed up and she has to wait for her appointment. Depending on the time of day, between commuting to the appointment, waiting for the appointment, and seeing her provider, Claudine may miss all or most of an assigned day at work. Claudine is not covered by the FMLA and does not have any sick leave left. Claudine asks human resources for a reasonable accommodation such as time off or changes in scheduling so she can attend her medical appointments.

·        Telework: Raim, a social worker, is in the seventh month of pregnancy and is very fatigued as a result. She asks her supervisor if she can telework and see clients virtually so she can rest between appointments. . . . Assuming the appointments can be conducted virtually, Raim can perform the essential functions of her job with the reasonable accommodation of working virtually. If there are certain appointments that must be done in person, the reasonable accommodation could be a few days of telework a week and then other accommodations that would give Raim time to rest, such as assigning Raim in-person appointments at times when traffic will be light so that they are easy to get to or setting up Raim’s assignments so that on the days when she has in-person appointments she has breaks between them. Or the reasonable accommodation could be the temporary suspension of the essential function of in-person appointments.

·        Temporary Workspace/Possible Temporary Suspension of an Essential Function: Brooke, a pregnant research assistant in her first trimester of pregnancy, asks the lead researcher on the project for a temporary workspace that would allow her to work in a well-ventilated area because her work involves hazardous chemicals that her health care provider has told her to avoid. She also points out that there are several research projects she can work on that do not involve exposure to hazardous chemicals. . . . If working with hazardous chemicals is an essential function of the job, Brooke may be able to perform that function with the accommodation of a well-ventilated work area. If providing a well-ventilated work area would be an undue hardship, Brooke could still be qualified with the temporary suspension of the essential function of working with the hazardous chemicals because Brooke’s inability to work with hazardous chemicals is temporary, and Brooke could perform the essential functions in the near future (within generally forty weeks). And it appears that her need to avoid exposure to hazardous chemicals could also be accommodated by allowing her to focus on the other research projects.

·        Pumping Breast Milk: Salma gave birth thirteen months ago and wants to be able to pump breast milk at work. Salma works at an employment agency that sends her to different jobs for a day or week at a time. Salma asks the person at the agency who makes her assignments to only assign her to employers who will allow her to take a break to pump breast milk at work.

·        Additional Breaks: Afefa, a pregnant customer service agent, requests two additional 10-minute rest breaks and additional bathroom breaks as needed during the workday. The employer determines that these breaks would not pose an undue hardship and grants the request. Because of the additional breaks, Afefa responds to three fewer calls during a shift. Afefa’s supervisor should evaluate her performance taking into account her productivity while on duty, excluding breaks. Penalizing an employee for failing to meet production standards due to receipt of additional breaks as a reasonable accommodation would render the additional breaks an ineffective accommodation. It also may constitute retaliation for use of a reasonable accommodation. However, if there is evidence that Afefa’s lower production was due not to the additional breaks, but rather to misconduct (for example, if she has frequent and unexcused absences to make or receive personal phone calls) or other performance issues, the employer may consider the lower production levels consistent with the employer’s production and performance standards.

Interactive Process.

The EEOC is relying heavily on the ADA’s interactive process procedures. While some accommodations will be obvious to both the employee and the employer, others may require more consideration and research.

in some instances, neither the employee or applicant requesting the accommodation, nor the covered entity, may be able to readily identify an appropriate accommodation. For example, an applicant needing an accommodation may not know enough about the equipment used by the covered entity or the exact nature of the work site to suggest an appropriate accommodation. Likewise, the covered entity may not know enough about the employee’s known limitation and its effect on the performance of the job to suggest an appropriate accommodation.

The EEOC suggests employing a procedure:

When an employee with a known limitation has requested a reasonable accommodation regarding the performance of the job, the covered entity, using a problem-solving approach, should:

a. Analyze the particular job involved and determine its purpose and essential functions;

b. Consult with the employee with a known limitation to ascertain what kind of accommodation is necessary given the known limitation;

c. In consultation with the employee with the known limitation, identify potential accommodations and assess the effectiveness each would have in enabling the employee to perform the essential functions of the position. If the employee’s limitation means that they are temporarily unable to perform one or more essential functions of the position, the parties must also consider whether suspending the performance of one or more essential functions may be a part of the reasonable accommodation if the known limitation is temporary in nature and the employee could perform the essential function(s) in the near future (within generally forty weeks); and

d. Consider the preference of the employee to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the covered entity.

While failing to engage in the interactive process is not an independent violation of the PWMA, denying an accommodation after failing to engage in the process can result in liability.

Failing to engage in the interactive process, in and of itself, is not a violation of the PWFA just as it is not a violation of the ADA. However, a covered entity’s failure to initiate or participate in the interactive process with the employee or applicant after receiving a request for reasonable accommodation could result in liability if the employee or applicant does not receive a reasonable accommodation even though one is available that would not have posed an undue hardship. Relatedly, an employee’s unilateral withdrawal from or refusal to participate in the interactive process can constitute sufficient grounds for denying the reasonable accommodation.

Yet,  “if an employee declines a reasonable accommodation, and without it the employee cannot perform one or more essential functions of the position, then the employee will no longer be considered qualified. However, because the PWFA allows for the temporary suspension of one or more essential functions in certain circumstances, an employer must also consider whether one or more essential functions can be temporarily suspended pursuant to the PWFA before a determination is made pursuant to this section that the employee is not qualified.”

Further, “if there is more than one effective accommodation, the employee’s or applicant’s preference should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between potential reasonable accommodations and may choose, for example, the less expensive accommodation or the accommodation that is easier for it to provide, or generally the accommodation that imposes the least hardship. In the situation where the employer is choosing between reasonable accommodations and does not provide the accommodation that is the worker’s preferred accommodation, the employer does not have to show that it is an undue hardship to provide the worker’s preferred accommodation.”

That being said, “the accommodation must provide the individual with a known limitation with an equal employment opportunity, meaning an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a known limitation.”  In addition, the employer is prohibited “from requiring a qualified employee or applicant affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than a reasonable accommodation arrived at through the interactive process” or from requiring the employee to take a leave of absence when a reasonable accommodation is available that would enable the employee to continue working.”

Undue Hardship

Finally, there is the employer’s defense of undue hardship.  This must involve significant difficulty, safety risk or expense and must exclude all possible reasonable accommodations, including providing all possible accommodations up to the point that the burden becomes undue.  For instance, if the worker seeks 10 weeks of leave and the employer can only provide 8 weeks, it must provide those 8 weeks. 

To address that under the PWFA an employer may have to accommodate an employee’s temporary inability to perform an essential function, the rule adds additional factors that may be considered when determining if the temporary suspension of an essential function causes an undue hardship. These additional factors include consideration of the length of time that the employee or applicant will be unable to perform the essential function(s); whether, through the methods listed in § 1636.3(f)(2)(iii) (describing potential reasonable accommodations related to the temporary suspension of essential functions) or otherwise, there is work for the employee or applicant to accomplish; the nature of the essential function, including its frequency; whether the covered entity has provided other employees or applicants in similar positions who are unable to perform essential function(s) of their positions with temporary suspensions of those functions and other duties; if necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s) in question; and whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

As with other reasonable accommodations, if the covered entity can establish that accommodating a worker’s temporary suspension of an essential function(s) would impose an undue hardship if extended beyond a certain period of time, the covered entity would only be required to provide that accommodation for the period of time that it does not impose an undue hardship.

Employers cannot prove undue hardship by speculation or concern over who else might seek the same accommodation or other accommodations an employee might seek.

Relatedly, a covered entity that receives numerous requests for the same or similar accommodation at the same time (for example, parking spaces closer to the factory) cannot deny all of them simply because processing the volume of current or anticipated requests is, or would be, burdensome or because it cannot grant all of them as requested. Rather, the covered entity must evaluate and provide reasonable accommodations unless or until doing so imposes an undue hardship. The covered entity may point to past and cumulative costs or burden of accommodations that have already been granted to other employees when claiming the hardship posed by another request for the same or similar accommodation.

There are four exceptions – called “predictable assessments” --  to the undue hardship defense where the proposed EEOC regulation provides that “virtually all” such requests must be granted because they are temporary and/or minor and could “virtually” never be an undue hardship. 

These modifications are: (1) allowing an employee to carry water and drink, as needed, in the employee’s work area; (2) allowing an employee additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, and (4) allowing an employee breaks, as needed, to eat and drink.

Here are some of the EEOC’s examples:

·        Undue Hardship: Patricia, a convenience store clerk, requests that she be allowed to go from working full-time to part-time for the last 3 months of her pregnancy due to extreme fatigue. The store assigns two clerks per shift, and if Patricia’s hours are reduced, the other clerk’s workload will increase significantly beyond his ability to handle his responsibilities. The store determines that such an arrangement will result in inadequate coverage to serve customers in a timely manner, keep the shelves stocked, and maintain store security. Based on these facts, the employer likely can show undue hardship based on the significant disruption to its operations and, therefore, can refuse to reduce Patricia’s hours. The employer, however, should explore whether any other reasonable accommodation will assist Patricia without causing undue hardship, such as providing a stool and allowing rest breaks throughout the shift.

·        Undue Hardship: Shirin, a dental hygienist who is undergoing IVF treatments, is fatigued and needs to attend medical appointments near her house every other day. She asks her supervisor if she can telework for the next 3 months. Full-time telework may be an undue hardship for the employer because Shirin’s essential functions include treating patients at the dental office. However, the employer must consider other reasonable accommodations, such as part-time telework while Shirin can perform the billing functions of her job, a schedule that would allow Shirin breaks between patients, part-time work, or a reduced schedule.

·        A pregnant worker in a busy fulfillment center that has narrow aisles between the shelves of products. The worker asks for the reasonable accommodation of a cart to use while they are walking through the aisles filling orders. The employer’s claim that the aisles are too narrow and its concern for the safety of other workers being bumped by the cart would be a defense based on undue hardship.

·        An employee seeks to have an essential function suspended for six months. The employer can go without the function being done for four months, but after that, it will be an undue hardship. The employer must accommodate the worker’s inability to perform the essential function for the four months and then consider whether there are other reasonable accommodations that it can provide, absent undue hardship.

·        Predictable Assessments: Amara, a quality inspector for a manufacturing company, experiences painful swelling in her legs, ankles, and feet during the final three months of her pregnancy. Her job requires standing for long periods of time. Amara asks the person who assigns her daily work for a stool so that she can sit while she performs her job. Amara’s swelling in her legs and ankles is a physical condition related to pregnancy. Amara’s request is for a modification that will virtually always be a reasonable accommodation that does not impose an undue hardship. The employer argues that it has never provided a stool to any other worker who complained of difficulty standing but points to nothing that suggests that this modification is not reasonable or that it would impose an undue hardship in this particular case on the operation of the employer’s business. The request must be granted.

·        Predictable Assessments: Jazmin, a pregnant teacher who typically is only able to use the bathroom when her class is at lunch, requests additional bathroom breaks during her 6th month of pregnancy. Additional bathroom breaks are one of the modifications that will virtually always be found to be a reasonable accommodation that does not impose an undue hardship. The employer argues that finding an adult to watch over the teacher’s class when she needs to take a bathroom break imposes an undue hardship, but Jazmin points out that there are several teachers with nearby classrooms, some classrooms have aides, and there is an administrative assistant who works in the front office, and that with a few minutes’ notice, one of them would be able to either stand in the hallway between classes to allow Jazmin a trip to the bathroom or, in the case of the administrative assistant, sit in the teacher’s classroom for a few minutes several times a day. The employer has not established that providing Jazmin with additional bathroom breaks imposes an undue hardship.

·        Addison, a clerk responsible for receiving and filing construction plans for development proposals, needs to maintain a regular intake of water throughout the day to maintain a healthy pregnancy. They ask their manager if an exception can be made to the office policy prohibiting liquids at workstations. The ability to access water during the day is one of the modifications that will virtually always be found to be a reasonable accommodation that does not impose an undue hardship. Here, although the manager decides against allowing Addison to bring water into their workstation, he proposes that a table be placed just outside the workstation where water can be easily accessed and gives permission for Addison to access this water as needed. The employer has satisfied its obligation to provide reasonable accommodation.

 

Next week I’ll cover the discussion of what is and is not allowed in requesting supporting documentation and other sundry issues.

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.