As reported in April, the EEOC has finalized its regulations at 29 C.F.R. §§ 1636.1 et seq., implementing the Pregnant Workers Fairness Act, 42 U.S.C. 2000gg et seq, which was enacted at the end of December 2022. The EEOC was directed to promulgate regulations and they became effective on June 18. While there is some litigation pending which is challenging the requirement to accommodate elective abortions (in contrast to abortions necessary for the life or health of the mother), the remainder of the regulation is in force. Today, I shall address mandatory reasonable accommodations which must be discussed with the employee and offered before an employee is forced to take a medical leave of absence. Unless the employee seeks leave as an accommodation, it is considered to be the accommodation of last resort and no accommodations can be forced on an employee.
Under the
PWFA, “[i]t shall be an unlawful employment practice for a covered entity to--
(1) not make reasonable accommodations to the known limitations related to the
pregnancy, childbirth, or related medical conditions of a qualified employee,
unless such covered entity can demonstrate that the accommodation would impose
an undue hardship on the operation of the business of such covered entity;
(2) require a qualified employee affected by pregnancy, childbirth, or related
medical conditions to accept an accommodation other than any reasonable
accommodation arrived at through the interactive process referred to in
section 102(7);
The term, “’qualified
employee' means an employee or applicant who, with or without reasonable
accommodation, can perform the essential functions of the employment position,
except that an employee or applicant shall be considered qualified if--
(A) any inability to perform an essential function is for a temporary period;
(B) the essential function could be performed in the near future; and
(C) the inability to perform the essential function can be reasonably
accommodated . . .
The regulations clarify that “temporary period” and “near future” generally means as many as 40 weeks, but is not indefinite or permanent. The 40 weeks is based on the length of a typical pregnancy, but post-partum conditions must also be accommodated and temporary may have a different -- and longer -- meaning in such cases.
the
Commission recognizes that employees may need an essential function(s) temporarily
suspended because of a current pregnancy; take leave to recover from
childbirth; and, upon returning to work, need the same essential function(s) or
a different one temporarily suspended due to the same or a different physical
or mental condition related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions. In keeping with the requirement that
the determination of whether an individual is qualified under the PWFA should be
made at the time of the employment decision,53 the determination of “in the
near future” should be made when the employee asks for each accommodation that
requires the suspension of one or more essential functions. Thus, an employee
who is 3 months pregnant and who is seeking
an accommodation of the temporary suspension of an essential function(s) due to
a limitation related to pregnancy will meet the definition of “in the near
future” because the inability to perform the essential function(s) will end in
less than 40 weeks. When the employee returns to work from leave after
childbirth, if the employee needs an essential function temporarily suspended
for a reason related to pregnancy, childbirth, or related medical conditions,
there should be a new determination made as to whether the employee is
qualified under §
1636.3(f)(2). In other words, there is a new calculation of “in the near
future” with the new employment decision that involves the temporary suspension
of an essential function(s) . . .
Also,
this 40-week timeframe for the temporary suspension of an essential function
does not include any time the employee needs for leave because leave is a
separate issue. “In the case of leave, the question would be whether the employee, 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).”
For instance, during pregnancy or following maternity leave, the employee may request the suspension of one or more essential functions and the employer must reasonably accommodate that request unless it would impose an undue hardship (which will be discussed in the future) and in consideration of the following factors set forth in §1636.3(j)(3):
(i)
The length of time that the employee will be unable to perform the essential
function(s);
(ii)
Whether, . . ., there is work for the
employee to accomplish;
(iii)
The nature of the essential function(s), including its frequency;
(iv)
Whether the covered entity has provided other employees in similar positions who
are unable to perform the essential function(s) of their position with temporary
suspensions of the essential function(s);
(v)
If necessary, whether there are other employees, temporary employees, or third
parties who can perform or be hired to perform the essential function(s); and
(vi)
Whether the essential function(s) can be postponed or remain unperformed for
any length of time and, if so, for how long.
The
regulations suggest that the temporary suspension of essential job functions
can generally be accomplished by temporarily (a) suspending the essential
functions while the employee performs the remaining functions of the job, (b)
suspending the essential functions while assigning the employee different job
functions to perform instead, (c) performing a different job via a transfer or
assignment or (d) being assigned to light or modified duties. 29 C.F.R. §1636(i) provides that reasonable
accommodations also include
- Job restructuring,
- Modified work schedules,
- Reassignment to vacant positions
- Rest breaks
- Purchasing devices to help with lifting and/or carrying,
- Providing seating,
- Telework or remote work,
- Reserved parking spaces,
As discussed
in the proposed regulations, there are four accommodations which will almost
always be mandatory because the undue hardship exception would rarely, if ever,
apply:
(i)
Allowing an employee to carry or keep water near and drink, as needed;
(ii)
Allowing an employee to take additional restroom breaks, as needed;
(iii)
Allowing an employee whose work requires standing to sit and whose work
requires
sitting to stand, as needed; and
(iv) Allowing an employee to take breaks to eat and drink, as needed.
The PWFA regulations require a greater type of
accommodation than is required under the ADA.
Here are some examples from the Appendix of when an employee would be
deemed qualified under the PWFA, but not the ADA:
(1) 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 employee to
perform that function without lifting more than 20 pounds; and
(2) a pregnant police officer is unable because of their pregnancy
to perform patrol duties during the third through ninth months of pregnancy,
patrol duties are an essential function of the job, and there is not a
reasonable accommodation that will allow the employee to perform the patrol
duties.
In both of these situations, an employer would be
required under the PWFA, but not the ADA, to temporarily suspend the essential
job functions unless doing so would be unreasonable or constitute an undue
hardship.
The Appendix also explains that
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 40 weeks for a pregnant
employee will not, on its own, render an employee unqualified under the PWFA.
These are some of the examples provided in the Appendix:
Example
#1/Definition of “Qualified”:
One
month into pregnancy, Akira, an employee 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 several essential functions of the job
involves regularexposure to these chemicals. Akira talks to her supervisor,
explains her limitation, and asks that she be allowed to continue to perform
her other tasks that do not require exposure to the chemicals. . . . .
Qualified:
If modifications that would allow Akira to continue to perform the essential functions
of her position (such as enclosing the chemicals, providing a local exhaust
vent, or providing additional personal protective gear) are not effective or
cause an undue hardship, Akira can still be qualified under the definition that
allows for a temporary suspension of an essential function(s).
a.
Akira’s inability to perform the essential function(s) is temporary.
b.
Akira can perform the essential function(s) of her job in the near future
because she is pregnant and needs an essential function(s) suspended for less
than 40 weeks.
c.
Akira’s inability to perform the essential function(s) may be reasonably accommodated.
The employer can suspend the essential function(s) that requires her to work
with the chemicals, while allowing her to do the remainder of her job.
Olga’s position as a
carpenter involves lifting heavy wood that weighs more than 20 pounds. Upon
returning to work after giving birth, Olga tells her supervisor that she has a
lifting restriction of 10 pounds due to her cesarean delivery. The restriction
is for 8 weeks. The employer does not have an established light duty program
but does have other design or administrative duties that Olga can perform. . . .
2. Qualified: Olga
needs the temporary suspension of an essential function(s).
a. Olga’s inability
to perform the essential function(s) is temporary.
b. Olga can perform
the essential function(s) of her job in the near future because she needs the
essential function(s) suspended for 8 weeks.
c. Olga’s need to
temporarily suspend an essential function(s) of her job may be reasonably
accommodated by temporarily suspending the essential function(s) and
temporarily assigning Olga to design or administrative duties.
Example
#12/Alleviating Pain or Risk to Health:
Celia
is a factory worker whose job requires her to regularly move boxes that weigh
50 pounds. Prior to her pregnancy, Celia occasionally felt pain in her knee
when she walked for extended periods of time. When Celia returns to work after giving
birth, which was by cesarean section, Celia requests that she limit tasks to
those that do not require moving boxes of more than 30 pounds for 3 months
because heavier lifting could increase the risk to her health and her continued
recovery from childbirth. Under the PWFA, the employer is required to provide
the requested accommodation (or another reasonable accommodation) absent undue
hardship. However, under the PWFA, the employer would not be required to
provide an accommodation for Celia’s knee pain unless it was related to,
affected by, or arising out of pregnancy, childbirth, or related medical
conditions. The employer also may have accommodation responsibilities regarding
Celia’s knee pain and lifting restrictions under the ADA.
Example
#13/Alleviating Pain or Risk to Health:
Emily
is a candidate for a police officer position. The application process takes
place over several months and has multiple steps, one of which is a physical
agility test. By the time it is Emily’s turn to take the test, she is 7 months pregnant.
To avoid risk to her health and the health of her pregnancy, Emily asks that
the test be postponed and that her application be kept active so that once she
has recovered from childbirth, she can resume the application process and not
have to re-apply. Under the PWFA, the employer is required to provide the
requested accommodation (or another reasonable accommodation) absent undue
hardship.
Example
#14/Alleviating Pain or Risk to Health:
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. For the one year when she is nursing, Jackie seeks the accommodation of a temporary suspension of an essential function—working with the chemicals—because of the risk that the chemicals will contaminate the milk she produces. The employer provides the accommodation. After Jackie stops nursing, she no longer has any known limitations. Thus, under the PWFA, she can be assigned to work with the chemicals again even if she would prefer not to do that work, because the PWFA requires an employer to provide an accommodation only if it is needed due to a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Jackie’s employer may have accommodation responsibilities under the ADA.
Example
#17/Alleviating Pain or Risk to Health:
Avery works as an
administrative assistant and is pregnant. Avery normally works in the office
and commutes by driving and public transportation. Due to pregnancy, Avery is
experiencing sciatica; commuting is painful because it requires Avery to sit
and stand in one position for an extended period of time. Avery seeks the accommodation
of teleworking or changing the start and end time of the workday in order to commute
during less crowded times and reduce the commute time and thereby reduce the
pain. Under the PWFA, the employer is required to provide the requested
accommodation (or another reasonable accommodation) absent undue hardship.
Example
#18/Alleviating Pain or Risk to Health:
Arya is pregnant and
works in a warehouse. When it is hot outside, the temperature in the warehouse
increases to a level that creates a risk to Arya and her pregnancy. Arya seeks
an accommodation of a portable cooling device to reduce the risk to her health
and the health of her pregnancy because of the heat in her workplace. Under the
PWFA, the employer is required to provide the requested accommodation (or
another reasonable accommodation) absent undue hardship.
Example
#19/Alleviating Pain or Risk to Health:
Talia is a nurse and
is pregnant. The community where she lives is experiencing a surge in cases of
a contagious respiratory viral disease that has been shown to increase the risk
of negative outcomes for pregnancy. To reduce her risk and the risk to her
pregnancy, Talia requests additional protective gear and to not be assigned to
patients exhibiting symptoms of this virus. Under the PWFA, the employer is required
to provide the requested accommodation (or another reasonable accommodation)
absent undue hardship.
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.
