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 recent 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.