PWFA Regulations Expand Employer's Reasonable Accommodation Obligations Beyond the ADA

 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).”

 The accompanying Appendix explains that “an employee need not have an impairment that substantially limits a major life activity to be entitled to a reasonable accommodation under the PWFA, nor does an employee need to have an “impairment” as defined in the regulation implementing the ADA.”  Spouses and other individuals associated with a pregnant employee are not entitled to accommodations and issues with childcare and newborn bonding are also not protected or covered by the PWFA.

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.

         Example #3/Definition of “Qualified”:

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.

EEOC Finalizes Regulations and Interpretative Guidance for PWFA, Including Minimal Requirements for Communicating a Need for Accommodation to Any Supervisor

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.

 As the EEOC explains in its Interpretative Guidance:

• [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.

Only "Reasonable" Documentation May be Sought to Support Accommodations Requested Under the EEOC's Proposed PWFA Regulations

Belatedly following up the summary of the EEOC’s proposed Interpretative Guidance for the EEOC’s proposed PWFA regulations, I am finally addressing permitted documentation which an employer may request and/or require when an employee seeks an accommodation – such as temporary elimination of an essential job function or a leave of absence – under the PWFA.    As with the ADA, the employer can request documentation in certain circumstances before granting an accommodation.  However, if as discussed below, the documentation requested is unreasonable, then the employer has no defense to delaying or denying the accommodation and can even be found liable for coercion or retaliation, etc. in violation of the PWFA.  Unlike the ADA, the employer may not require the employee to be examined by a healthcare provider of the employer’s choosing.  Like the ADA, the information provided must remain confidential. 

Documentation may not be requested when the limitation and need for accommodation are “obvious.”  The EEOC explains this exception as follows:

For example, when an obviously pregnant worker states or confirms they are pregnant and asks for a different size uniform or related safety gear, both the limitation and the need for the accommodation are obvious, and “known” under the statute, and the employer may not require supporting documentation. 

If the pregnancy is obvious, and the worker states or confirms that they are pregnant, but the limitation related to the pregnancy or parameters of a potential accommodation are not, the employer may only request documentation relevant to the accommodation. For example, if a worker who is obviously pregnant, states or confirms that they are pregnant, and asks to avoid lifting heavy objects, it may be reasonable for the employer to request documentation about the limitation such as the extent of the lifting restriction and its expected duration, but not about the pregnancy itself.  Similarly, if an obviously pregnant employee requests the reasonable accommodation of leave related to childbirth and recovery and states or confirms that they are pregnant it may be reasonable for the employer to require documentation regarding the amount of time the worker anticipates needing to recover from childbirth, but not reasonable to require documentation of the pregnancy itself.

Documentation may not be requested when the employee has already provided sufficient documentation and/or information to substantiate her limitation and need for an accommodation. The EEOC explains this exception as follows:

If a worker has already provided documentation stating that because of their recent cesarean section, they should not lift over 20 pounds for two months, the employer may not require further documentation during those two months because the employee has already provided the employer with sufficient information to substantiate that they have a limitation and need a change at work.

Documentation may not be requested when the employee seeks one of the four mandatory accommodation previously discussed.    As the EEOC explains:

 

 . . . . . : (1) carrying water and drinking, as needed; (2) taking additional restroom breaks; (3) sitting, for those whose work requires standing, and standing, for those whose work requires sitting; and (4) breaks, as needed, to eat and drink. It is not reasonable to require documentation, beyond self-attestation, when a worker is pregnant and seeks one of the four listed modifications because these are a small set of commonly sought accommodations that are widely known to be needed during an uncomplicated pregnancy and where documentation would not be easily obtainable or necessary. As noted above, particularly early in pregnancy, employees and applicants are less likely to have sought or been able to obtain an appointment with a health care provider for their pregnancy. Further, they may not be able to obtain an appointment with a health care provider repeatedly on short notice for every limitation, as each becomes apparent. The Commission notes that this position is consistent with the overarching goal of the PWFA to assist workers affected by pregnancy to remain on the job by providing them with simple accommodations quickly.

Documentation also may not be requested when the accommodation involves lactation.    As the EEOC explains:

. . . .  As the initiation of lactation around birth is nearly universal, the Commission considers the fact of breastfeeding obvious, such that it will not be reasonable for an employer to require documentation regarding lactation or pumping. Pragmatically, the Commission notes that health care providers may not be able to provide documentation regarding whether a worker is pumping, nor the types of accommodations needed in order to pump breast milk.  Of course, not all workers can or choose to breastfeed; those who do elect to breastfeed do so for widely varying lengths of time. Although the proposed rule states that it is generally not reasonable for an employer to require supporting documentation for lactation or pumping, an employer will not violate the proposed rule simply by asking the employee whether they require an appropriate place to express breastmilk while at a worksite. Employee confirmation—or a simple request to pump at work—is sufficient confirmation.

The relevant language of the proposed regulation is as follows:

1634.3(l) Supporting documentation. (1) A covered entity that decides to seek supporting documentation from a worker who seeks an accommodation under the PWFA is limited to requiring documentation that is reasonable under the circumstances for the covered entity to determine whether to grant the accommodation. The following situations are examples of when requiring supporting documentation is not reasonable under the circumstances:

(i) When the known limitation and need for reasonable accommodation are obvious and the employee confirms the obvious limitation and need for reasonable accommodation through self-attestation;

(ii) When the employee or applicant already has provided the covered entity with sufficient information to substantiate that the employee or applicant has a known limitation and that a change or adjustment at work is needed;

(iii) When the employee or applicant is pregnant and the reasonable accommodation is one of those listed in paragraphs (j)(4)(i) through (iv) of this section and the employee has provided a self-attestation; or

(iv) When the covered entity requires documentation other than self-attestation from the employee or applicant regarding lactation or pumping.

(2) When requiring supporting documentation is reasonable under the circumstances, the covered entity is limited to requiring reasonable documentation. Reasonable documentation means documentation that is sufficient to describe or confirm the physical or mental condition; that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and that a change or adjustment at work is needed.

(3) A covered entity may require that documentation comes from the appropriate health care provider in a particular situation, which may include, but is not limited to, doctors, doulas, midwives, psychologists, nurses, nurse practitioners, physical therapists, lactation consultants, occupational therapists, vocational rehabilitation specialists, therapists, and licensed mental health providers. The covered entity may not require that the employee or applicant seeking the accommodation be examined by a health care provider selected by the covered entity.

(4) The rules protecting confidential medical information in the Americans with Disabilities Act, 42 U.S.C. 12111 et seq., apply to medical information received by a covered entity under the PWFA.

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.