On Friday, the EEOC finally published its final rule, or regulation, and Interpretative Guidance governing and explaining the enforcement of the Pregnant Worker Fairness Act (PFWA). While not quite as expansive as the proposed regulation, it makes significant changes in how employers with more than 15 employees are required to treat workers who may become, are or have recently been pregnant. For instance, 40 weeks of leave is expected (albeit much of it can be unpaid), as is the temporary (i.e., not indefinite) suspension of essential job functions to reasonably accommodate limitations (which need not be impairments or disabilities). This will take several days to summarize, so today, I will focus on communication.
Employees
need only communicate their limitations to anyone in authority --
including supervisors, managers, HR, recruiters or anyone who directs their tasks
and such communication need not be in writing or on any particular form or
using any particular words. 29 C.F.R. §1636.3(d).
Employees
also need not state whether they are requesting an accommodation under the ADA
or PWFA since a limitation may be covered by either or both of these statutes. Employers may confirm the information in
writing to promote clarity and create a record of the request. Employers should immediately train their
supervisory and other management staff about how to recognize a request for an
accommodation under the PWFA because any delay in providing the
requested or an interim accommodation can create liability for the employer.
- [A]n employee does not need to “ask” but may provide a statement of their need for an Accommodation.
- Employees should not be made to wait for a reasonable accommodation, especially one that is simple and imposes negligible cost or is temporary, because they spoke to the “wrong” supervisor.
- Employees may inform the employer of the limitation and request an accommodation in a conversation or may use another mode of communication to inform the employer. A covered entity may choose to confirm a request in writing or may ask the employee to fill out a form or otherwise confirm the request in writing. . . . the covered entity cannot ignore or close an initial request that satisfies § 1636.3(h)(2) if the employee does not complete such confirmation procedures, because that initial request is sufficient to place the employer on notice.
- [T]he employee need not determine whether this is a “limitation” or a “related medical condition” in order to request an accommodation under the PWFA . . . . . Employees are not required to specifically identify whether a condition is “pregnancy, childbirth, or related medical conditions” or whether it is a “physical or mental condition.”
- Many, but not all, conditions related to pregnancy and childbirth can be both a “limitation” and a “related medical condition.”
In
these examples, the employee is communicating both their limitation and that
they need an adjustment or change at work due to the limitation. The Commission
expects that in the vast majority of cases these two communications will happen
at the same time. All of these are examples of requests for reasonable
accommodations under the PWFA.
Example
#6: A pregnant employee tells her supervisor, “I’m having trouble getting to
work at my scheduled starting time because of morning sickness.”
Example
#7: An employee who gave birth 3 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.”
Example
#8: 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.
Example
#9: At the employee’s request, an employee’s spouse 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.
Example
#10: An employee tells 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 an accommodation.
Example
#11: An employee tells a supervisor that she needs time off to recover from
childbirth.
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.
