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.

EEOC Proposes Broad Regulations for the PWFA Affecting Women Before, During and After Pregnancy

 Yesterday, the EEOC proposed regulations to govern the new Pregnant Workers Fairness Act, which became effective on June 27, applies to employers with 15+ employees and requires that reasonable accommodations be made to pregnant workers.  However, the regulations go far beyond the language of the Act or the EEOC’s initial summary of it to require accommodations (including intermittent and extended leaves of absences) for infertility treatments, post-pregnancy issues, regular maternity medical treatment, and any medical condition related to pregnancy, including menstruation.  It also requires the elimination of essential job functions (unless it constitutes an undue hardship) for up to 40 weeks at a time (i.e., both before birth and after a return from what is now a mandatory maternity leave).  Employers could even be required to transfer pregnant employees closer to preferred medical treatment providers (even in other cities).  Employers are not permitted to delay accommodations in most cases and cannot even require medical documentation in most cases or ever obtain second opinions.  Indeed, supervisors must be trained to recognize an accommodation request because such requests do not require specific words that must be used, need not be in writing and need not comply with any employer policies for seeking reasonable accommodations.   While the EEOC posited that the Act would not be unduly burdensome because pregnant workers are very few in the overall workforce, the regulations make clear that it covers women both before and after pregnancies for a wide variety of situations and who were not included in the EEOC’s statistics.   In short, the PWFA regulations go far beyond the ADA or FMLA in granting time off and modifying essential job duties.  I will summarize various provisions over the next few days because the proposed regulations and their commentary are lengthy, extensive and non-intuitive.

As summarized on the EEOC’s website, the PWFA describes possible accommodations as follows:

The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations including the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer. 

The relevant provisions of the Act itself provides as follows:

·        (4) the term ``known limitation'' means physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee's representative has communicated to the employer whether  or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102); 

·        (6) 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;

·        (7) the terms ``reasonable accommodation'' and ``undue hardship'' have the meanings given such terms in section 101 of the  Americans with Disabilities Act of 1990 (42 U.S.C. 12111) and shall be construed as such terms are construed under such Act and as set forth in the regulations required by this division, including with regard to the interactive process that will typically be used to determine an appropriate reasonable accommodation.

·        It 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);

(3)   deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the    qualified employee;

(4)   require a qualified employee to take leave, whether paid or  unpaid, if another reasonable accommodation can be provided to the  known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or

(5)   take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related    medical conditions of the employee.

·         . . .  if an unlawful employment practice involves the provision of a reasonable accommodation pursuant to this division or regulations implementing this division, damages may not be awarded under section 1977A of the Revised Statutes (42 U.S.C. 1981a) if the covered entity demonstrates good faith efforts, in consultation with the employee with known limitations related to pregnancy, childbirth, or related medical conditions who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such employee with an equally effective opportunity and would not cause an undue hardship on the operation of the covered entity.

Here are some prefatory statements from the EEOC about its approach to drafting the proposed regulations:

·        The PWFA also covers existing conditions that are exacerbated by, and therefore related to, pregnancy or childbirth, such as high blood pressure, anxiety, or carpal tunnel syndrome.

·        [T]he types of reasonable accommodations that a worker may seek under the PWFA include, but are not limited to: job restructuring; part-time or modified work schedules; more frequent breaks; acquisition or modification of equipment, uniforms, or devices; allowing seating for jobs that require standing or standing in jobs that require sitting; appropriate adjustment or modification of examinations or policies; permitting the use of paid leave (whether accrued, short-term disability, or another type of employer benefit) or providing unpaid leave, including to attend health care[1]related appointments and to recover from childbirth;19 assignment to light duty;20 telework; and, accommodating a worker’s inability to perform one or more essential functions of a job by temporarily suspending the requirement that the employee perform that function, if the inability to perform the essential function is temporary and the worker could perform the essential function in the near future.

·        [G]iven the nature of the accommodations required by the PWFA, virtually all will be temporary. Given these facts and the cost data from accommodations under the ADA, the actual costs an employer may face will likely be temporary and low.

·        [T]he number of workers seeking an accommodation from a given employer in a year will be small. The EEOC has calculated that in 2021, women of reproductive age (aged 16-50 years) comprised approximately 33 percent of U.S. workers. Of these, approximately 4.7 percent gave birth to at least 1 child the previous year. Not all pregnant workers require an accommodation, so the actual number of accommodations may be even lower than this number suggests.

·        Like the ADA, the PWFA does not require a covered entity to provide a reasonable accommodation that would cause undue hardship.

·        Communication between workers and covered entities is the key to voluntary compliance. As set out in the proposed regulations, employees and applicants have the responsibility of asking for an accommodation. In doing so, they do not need to mention the PWFA, say any specific phrases, or use medical terms, and the request does not have to be in writing. Rather, the worker can communicate (or have someone communicate on their behalf) that the worker has a limitation that is related to pregnancy, childbirth, or related medical conditions and the need for an adjustment or change at work. Because the statute and the regulations emphasize employee notice that is simple and straightforward, and need not be in writing, covered entities should train first-line supervisors to recognize such requests as requests for accommodations and to act on them accordingly.

·        Importantly, the physical or mental condition leading the worker to seek an accommodation can be a modest, minor, and/or episodic problem or impediment: there is no threshold of severity required under the PWFA.

·        The definition also includes when a worker is seeking health care related to pregnancy, childbirth, or a related medical condition itself.

·        The PWFA has two definitions of qualified. i. First, the PWFA uses language from the ADA (“an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position” is qualified). ii. Second, the PWFA allows an employee or applicant to be “qualified”— even if they cannot perform one or more essential functions of the job—if the inability to perform the essential function(s) is “temporary,” the worker could perform the essential function(s) “in the near future,” and the inability to perform the essential function(s) can be reasonably accommodated. The proposed rule defines the terms “temporary” (lasting for a limited time, not permanent, and may extend beyond “in the near future”) and “in the near future” (generally within forty weeks). It also discusses the meaning of the requirement that the inability to perform the essential functions(s) can be reasonably accommodated.

 As for the crux of the actual regulations:

§ 1636.3 Definitions - specific to the PWFA. (a) Known limitation means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or applicant or the representative of the employee or applicant has communicated to the covered entity, whether or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act of 1990, 42 U.S.C. 12102.

(1) Known in terms of limitation means the employee or applicant, or a representative of the employee or applicant, has communicated the limitation to the employer.

(2) Limitation means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. “Physical or mental condition” is an impediment or problem that may be modest, minor, and/or episodic. The physical or mental condition may also be that an employee or applicant affected by pregnancy, childbirth, or related medical conditions has a need or a problem related to maintaining their health or the health of the pregnancy. The definition also includes when the worker is seeking health care related to pregnancy, childbirth, or a related medical condition itself. A “physical or mental condition” does not need to meet the definition of disability from the Americans with Disabilities Act (42 U.S.C. 12111 et seq.).

(b) Pregnancy, childbirth, or related medical conditions: “Pregnancy” and “childbirth” include, but are not limited to, current pregnancy; past pregnancy; potential or intended pregnancy; labor; and childbirth (including vaginal and cesarean delivery). “Related medical conditions” are medical conditions which relate to, are affected by, or arise out of pregnancy or childbirth, as applied to the specific employee or applicant in question, including, but not limited to, termination of pregnancy, including via miscarriage, stillbirth, or abortion; infertility; fertility treatment; ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal (during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstrual cycles; use of birth control; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections. This list is non-exhaustive, and an employee or applicant does not have to specify a condition on this list or use medical terms to describe a condition in order to be eligible for a reasonable accommodation.

(d) Communicated to the employer means an employee or applicant, or a representative of the employee or applicant, has made the request for an accommodation to the covered entity by communicating with a supervisor, manager, someone who has supervisory authority for the employee (or the equivalent for the applicant), or human resources personnel, or by following the steps in the covered entity’s policy to request an accommodation.

(1) The communication may be made orally, in writing, or by another effective means.

 (2) A covered entity may not require that the communication be in writing, in any specific format, or on any particular form in order to be considered “communicated to the employer.”

(3) To request a reasonable accommodation, the employee or applicant, or a representative of the employee or applicant, need only communicate to the covered entity that the employee or applicant:

 (i) Has a limitation, and

(ii) Needs an adjustment or change at work.

(f) Qualified employee or applicant with respect to an employee or applicant with a known limitation under the PWFA means:

(1) An employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.

(i) With respect to leave as an accommodation, the relevant inquiry is whether the employee is reasonably expected to be able to perform the essential functions, with or without a reasonable accommodation, at the end of the leave, if time off is granted, or if the employee is qualified as set out in paragraph (f)(2) of this section after returning from leave.

(2) Additionally, an employee or applicant shall be considered qualified if they cannot perform one or more essential functions if:

(i) Any inability to perform an essential function is for a temporary period, where “temporary” means lasting for a limited time, not permanent, and may extend beyond “in the near future”;

(ii) The essential function(s) could be performed in the near future, where “in the near future” means the ability to perform the essential function(s) will generally resume within forty weeks of its suspension; and

(iii) The inability to perform the essential function can be reasonably accommodated. This may be accomplished by temporary suspension of the essential function(s) and the employee performing the remaining functions of their position or, depending on the position, other arrangements, including, but not limited to: the employee performing the remaining functions of their position and other functions assigned by the covered entity; the employee performing the functions of a different job to which the covered entity temporarily transfers or assigns the employee; or the employee being assigned to light duty or modified duty or participating in the covered entity’s light or modified duty program.

(g) Essential functions mean the fundamental job duties of the employment position the employee or applicant holds or desires. The term “essential functions” does not include the marginal functions of the position. (1) A job function may be considered essential for any of several reasons, including but not limited to the following:

(i) The function may be essential because the reason the position exists is to perform that function;

(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

 (iii) The function may be highly specialized so that the incumbent in the position is hired for their expertise or ability to perform the particular function.

(h) Reasonable accommodation—generally. With respect to an employee or applicant with a known limitation under the PWFA, reasonable accommodation includes:

(1) Modifications or adjustments to a job application process that enable an applicant with a known limitation under the PWFA to be considered for the position such applicant desires; or

(2) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified employee or applicant with a known limitation under the PWFA to perform the essential functions of that position; or

(3) Modifications or adjustments that enable a qualified employee or applicant with a known limitation under the PWFA to enjoy equal benefits and privileges of employment; or

(4) Temporary suspension of essential function(s) and/or modifications or adjustments that permit the temporary suspension of essential function(s).

(5) To determine the appropriate reasonable accommodation, it may be necessary for the covered entity to initiate an informal, interactive process as explained in paragraph (k) of this section.

(i) Reasonable accommodation—examples. Reasonable accommodation may include, but is not limited to:

(1) Making existing facilities used by employees readily accessible to and usable by employees and applicants with known limitations under the PWFA;

 (2) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; breaks for use of the restroom, drinking, eating, and/or resting; acquisition or modification of equipment, uniforms, or devices, including devices that assist with lifting or carrying for jobs that involve lifting and/or carrying; modifying the work environment; providing seating for jobs that require standing, or standing for jobs that require sitting; appropriate adjustment or modifications of examinations or policies; permitting the use of paid leave (whether accrued, as part of a short-term disability program, or any other employer benefit) or providing additional unpaid leave for reasons, including, but not limited to, recovery from childbirth, miscarriage, stillbirth, or medical conditions related to pregnancy or childbirth, to attend health care appointments or receive health care treatment related to pregnancy, childbirth, or related medical conditions; placement in the covered entity’s light or modified duty program or assignment to light duty or modified work; telework; adjustments to allow an employee or applicant to work without increased pain or increased risk to the employee’s or applicant’s health or the health of the employee’s or applicant’s pregnancy due to the employee’s or applicant’s known limitation; temporarily suspending one or more essential functions of the position; providing reserved parking spaces if the employee is otherwise entitled to use employer-provided parking; and other similar accommodations for employees or applicants with known limitations.

(3) The reasonable accommodation of leave includes, but is not limited to:

(i) The ability to use paid leave (whether accrued, short-term disability, or another employer benefit) or receive unpaid leave, including, but not limited to, leave during pregnancy; to recover from childbirth, miscarriage, or stillbirth; and to attend health care appointments or receive health care treatments related to pregnancy, childbirth, or related medical conditions;

(ii) The ability to use paid leave (accrued, short-term disability, or another employer benefit) or unpaid leave for a known limitation under the PWFA;

(iii) The ability to choose whether to use paid leave (accrued, short-term disability or another employer benefit) or unpaid leave to the extent that the covered entity allows employees using leave not related to pregnancy, childbirth, or related medical conditions to choose between the use of paid leave (accrued, short-term disability, or another employer benefit) and unpaid leave; and

(iv) A covered entity’s concerns about the length, frequency, or unpredictable nature of leave requested as a reasonable accommodation are questions of undue hardship.

(4) The provision of reasonable accommodations related to lactation, including, but not limited to:

(i) Breaks, a space for lactation, and other related modifications as required under the PUMP Act (Pub .L. 117-328, Div. KK, 29 U.S.C. 218d), if not already provided under the PUMP Act; (ii) Whether the space for lactation is provided under the PUMP Act or paragraph (i)(4)(i) of this section, accommodations related to pumping, such as, but not limited to, ensuring that the area for lactation is in reasonable proximity to the employee’s usual work area; that it is regularly cleaned; that it has electricity, appropriate seating, and a surface sufficient to place a breast pump; and that it is in reasonable proximity to a sink, running water, and a refrigerator for storing milk.

(5) The temporary suspension of one or more essential function(s) of the position in question, as defined in paragraph (g) of this section, is a reasonable accommodation if an applicant or employee with a known limitation is unable to perform one or more essential functions with or without a reasonable accommodation and the conditions in paragraph (f)(2) of this section are met.

(j) Undue hardship—

(1) In general. Undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a covered entity, when considered in light of the factors set forth in paragraph (j)(2) of this section.

(2) Factors to be considered. In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered, with no one factor to be dispositive, include:

(i) The nature and net cost of the accommodation needed under the PWFA;

(ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;

(iii) The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;

(iv) The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and

(v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

(3) If an employee or applicant with a known limitation under the PWFA meets the definition of “qualified employee” under paragraph (f)(2) of this section and needs one or more essential functions of the relevant position to be temporarily suspended, the covered entity must provide the accommodation unless doing so imposes an undue hardship when considered in light of the factors provided in paragraphs (j)(2)(i) through (v) of this section as well as the following additional factors where they are relevant and with no one factor being dispositive:

(i) The length of time that the employee or applicant will be unable to perform the essential function(s);

(ii) Whether, through the factors listed in paragraph (f)(2)(iii) of this section or otherwise, there is work for the employee or applicant to accomplish;

(iii) The nature of the essential function(s), including its frequency;

(iv) Whether the covered entity has provided other employees or applicants in similar positions who are unable to perform the essential function(s) of their position with temporary suspensions of essential functions;

(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.

 (4) Predictable assessments: Although a covered entity must assess on a case-by-case basis whether a requested modification is a reasonable accommodation that would cause undue hardship, the individualized assessment of whether the modifications listed in paragraphs (j)(4)(i) through (iv) of this section would cause undue hardship will, in virtually all cases, result in a determination that they are reasonable accommodations that will not impose an undue hardship under the PWFA when they are requested as workplace accommodations by an employee or applicant who is pregnant. Given the simple and straightforward nature of these modifications, they will, as a factual matter, virtually always be found to be reasonable accommodations that do not impose significant difficulty or expense (i.e., undue hardship). Therefore, with respect to these modifications, the necessary individualized assessment should be particularly simple and straightforward. It should easily be concluded that the following modifications will virtually always be reasonable accommodations that do not impose an undue hardship:

(i) Allowing an employee or applicant to carry water and drink as needed during the workday;

(ii) Allowing an employee or applicant additional restroom breaks;

(iii) Allowing an employee or applicant whose work requires standing to sit and whose work requires sitting to stand; and

(iv) Allowing an employee or applicant breaks as needed to eat and drink.

(5) A covered entity may not establish that a reasonable accommodation imposes an undue hardship based on a mere assumption or speculation that other employees might seek a reasonable accommodation, or even the same reasonable accommodation, in the future.

(k) Interactive process means an informal, interactive process between the covered entity and the employee or applicant seeking an accommodation under the PWFA. This process should identify the known limitation and the change or adjustment at work that is needed, if either of these are not clear from the request, and potential reasonable accommodations. There are no rigid steps that must be followed.

(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.

§ 1636.4 Prohibited practices.

(a) It is an unlawful employment practice for a covered entity not to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee or applicant, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.

(1) An unnecessary delay in responding to a reasonable accommodation request may result in a violation of the PWFA, 42 U.S.C. 2000gg-1(1), even if the covered entity eventually provides the reasonable accommodation. In determining whether there has been an unnecessary delay, factors to be considered, with no one factor to be dispositive, include:

(i) The reason for the delay;

(ii) The length of the delay;

 (iii) How much the employee or applicant and the covered entity each contributed to the delay;

(iv) Whether the covered entity was engaged in actions related to the reasonable accommodation request during the delay;

(v) Whether the accommodation was simple or complex to provide. There are certain accommodations, set forth in § 1636.3(j)(4), that are common and easy to provide. Delay in providing these accommodations will virtually always result in a finding of unnecessary delay; and

(vi) Whether the covered entity offered the employee or applicant an interim reasonable accommodation during the interactive process or while waiting for the covered entity’s response. If an interim reasonable accommodation is offered, delay by the covered entity is more likely to be excused. For the purposes of this factor, leave will not be considered an appropriate interim reasonable accommodation if there is another interim reasonable accommodation that would not cause an undue hardship for the covered entity and would allow the employee or applicant to continue to work, unless the employee or applicant selects or requests leave as an interim accommodation.

(2) An employee or applicant with a known limitation under the PWFA is not required to accept an accommodation. However, if such employee or applicant rejects a reasonable accommodation that is necessary to enable the employee or applicant to perform the essential functions of the position held or desired or to apply for the position, and as a result of that rejection, cannot perform the essential functions of the position or cannot apply, the employee or applicant will not be considered “qualified.” In this situation, the covered entity also must consider whether the employee could be “qualified” under the second part of the PWFA’s definition, set forth at § 1636.3(f)(2).

(3) A covered entity cannot justify the denial or delay of a reasonable accommodation based on an employee or applicant failing to provide supporting documentation, unless requiring the supporting documentation is reasonable under the circumstances for the covered entity to determine whether to provide the accommodation.

(4) The accommodation should provide the employee or applicant with equal employment opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges as are available to the average similarly situated employee without a known limitation. When choosing between accommodations that do not cause an undue hardship, the covered entity must choose an option that provides the employee or applicant equal employment opportunity.

(b) It is unlawful for a covered entity to require a qualified employee or applicant 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 42 U.S.C. 2000gg(7) and described at § 1636.3(k).

(c) It is unlawful for a covered entity to deny employment opportunities to a qualified employee or applicant if such denial is based on the need or potential need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth or related medical conditions of the qualified employee or applicant.

(d) It is unlawful for a covered entity:

 (1) To require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee that does not result in an undue hardship for the covered entity; but

(2) Nothing in this provision limits the provision of leave as a reasonable accommodation if that is the reasonable accommodation requested or selected by the employee, or if it is the only reasonable accommodation that does not cause an undue hardship.

(e) It is unlawful for a covered entity: (1) To take adverse action in terms, conditions, or privileges of employment against a qualified employee, applicant, or former employee on account of the employee, applicant, or former employee requesting or using a reasonable accommodation to the known limitations related to pregnancy, childbirth, or related medical conditions of the employee, applicant, or former employee. (2) Nothing in paragraph (e)(1) of this section limits the rights available under 42 U.S.C. 2000gg-2(f) of the PWFA or § 1636.5(f).

Tomorrow, I will cover some of the commentary and examples given in Appendix/Interpretative Guidance since the devil is in the details. 

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.