An Initial Summary of the EEOC's proposed Interpretative Guidance of the PWFA

The EEOC’s proposed PWFA regulations also contain an Appendix of the EEOC’s Interpretative Guidance for the regulations, much like the initial ADA regulations.  Today, I shall focus on what conditions/impairments are covered, what constitutes a request for an accommodation and the standard for evaluating accommodation requests, including leaves of absence and the temporary elimination of essential job functions, in the Interpretative Guidance.

What Conditions or Impairments Are Covered and Should Be Accommodated?

§ 1636.3 Definitions - specific to the PWFA. (a)(2) Limitation. Pregnant workers (which as will be discussed, includes in the EEOC’s opinion, pre-pregnancy, current pregnancy and post-pregnancy) are entitled to an accommodation even if the issue does not rise to the level of an ADA disability and is not in any way severe.  Why?  First, the statute specifically says that it does not need to be a disability.  Second, if it was a disability, it would already be covered by the ADA.  This statute wants women to maintain their health and that of a future or current pregnancy.  “Practically, allowing for accommodations to maintain health and attend medical appointments also increases the chances that the accommodation is minor and may decrease the need for a more extensive accommodation because the worker may be able to avoid more serious complications.”  In short, “whether a worker has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions shall be construed broadly to the maximum extent permitted by the PWFA.”

“The list in the regulation for the definition of “pregnancy, childbirth, or related medical conditions” includes current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.”

“Related medical conditions” include conditions that existed before pregnancy or childbirth (and for which an individual was perhaps receiving reasonable accommodation under the ADA) but that may be or have been exacerbated by pregnancy or childbirth, such that additional or different accommodations are needed. For example, a worker who was using unpaid leave as an accommodation to attend treatment for anxiety may experience a worsening of anxiety due to pregnancy or childbirth and request an additional accommodation. A worker who received extra breaks to eat or drink due to Type 2 diabetes before pregnancy may need additional accommodations during pregnancy to monitor and manage the diabetes more closely and avoid or minimize adverse health consequences to the worker or their pregnancy. A worker may have high blood pressure that can be managed prior to the pregnancy, but once the worker is pregnant, the high blood pressure poses a risk to the pregnancy and the worker needs bed rest. In these situations, an employee could request an additional accommodation under the ADA or an accommodation under the PWFA.

Here are some of the “obvious” physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions:

·        Pain when standing for long period of time

·        Cannot lift more than 20 pounds

·        Needs to attend prenatal healthcare appointments

·        Needs to attend therapy sessions for post-partum depression

·        Limiting exposure to second hand smoke

·        Leave of absence to obtain IVF treatment in order to get pregnant

·        Fatigue

·        Back pain

Because some of these issues also exist without pregnancies, employers are permitted to request medical documentation showing that the request is related to pregnancy:  “To the extent that a covered entity has reasonable concerns about whether a physical or mental condition or limitation is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” the employer may request information from the employee regarding the connection, using the principles set out in section 1636.3(l) about the interactive process and supporting documentation.”  

Even when the issue is not covered by the PWFA, it may be covered by the ADA.  Under the PWFA, “to be a ‘related medical condition’ as applied to the specific employee or applicant in question, the condition must relate to pregnancy or childbirth. Some of the “related medical conditions” listed in the regulation are conditions that commonly, but not necessarily, relate to pregnancy or childbirth. If a worker has a condition that is listed in the regulation but, in their situation, it does not relate to pregnancy or childbirth, the condition shall not be covered under the PWFA. For example, if a worker has high blood pressure but that medical condition is not related to pregnancy or childbirth, a physical or mental condition related to the worker’s high blood pressure is not eligible for an accommodation under the PWFA.”

Requesting Accommodations under the PWFA

[A] request for a reasonable accommodation under the PWFA, as with the ADA, does not need to be in writing or use any specific words or phrases. Instead, employees or applicants may request accommodations in conversation or may use another mode of communication to inform the employer.  A covered entity may choose to write a memorandum or letter confirming a request or may ask the employee or applicant to fill out a form or submit the request in written form. However, the covered entity cannot ignore or close the initial request because that initial request is sufficient to place the employer on notice. Additionally, even though it is not required, an employee may choose email or other similar written means to submit a request for an accommodation to ensure clarity and create a record.

These are the examples provided by the EEOC of what constitutes a PWFA accommodation request:

·        A pregnant employee tells her supervisor, “I’m having trouble getting to work at my scheduled starting time because of morning sickness.”

·        An employee who gave birth three 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.”

·        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.

·        An employee’s spouse, on the employee’s behalf, 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 or light duty for the employee.

·        An employee verbally informs 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 accommodation.

·        An employee tells a supervisor that she needs time off to recover from childbirth.

Employers are strongly encouraged to train their front line supervisory staff to recognize an accommodation requests because there is liability for delaying an accommodation even if the accommodation is ultimately granted later.

Evaluating Accommodation Requests

The regulation sets up two different standards to determine if a worker is qualified for an accommodation.  One applies generally and one only applies to temporary (i.e., 40 weeks at a time) elimination of essential job functions which do not impose an undue hardship.

The general standard is similar to and interpreted in light of the ADA:

(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.

By way of example, “a pregnant attorney who uses the firm’s established telework program to work at home during morning sickness does not need an accommodation to perform the essential functions of the job and therefore is qualified without a reasonable accommodation. A pregnant cashier who needs a stool to perform the job will be qualified with the reasonable accommodation of a stool.”

Leaves of Absence

With respect to a leave of absence as an accommodation, the regulation provides as follows in §1636.3(f)(1)(i):

(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.

The EEOC explains that “” the relevant inquiry is whether the employee 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 [under the second part]), with the benefit of a period of intermittent leave, after a period of part-time work, or at the end of a period of leave or time off.”

By way of example, the EEOC describes “an employee who needs some form of leave to recover from a known limitation caused, for example, by childbirth or a miscarriage, can meet the definition of “qualified” because it is reasonable to conclude that once they return from the period of leave (or during the time they are working if it is intermittent leave) they will be able to perform the essential functions of the job, with or without additional reasonable accommodations or will be qualified under the second part of the PWFA definition that is described in the next subsection.”

Under that second subsection, the EEOC explained:

 .. . “leave related to recovery from pregnancy, childbirth, or related medical conditions does not count as time when an essential function is suspended and thus is not relevant for the second prong of the definition of qualified. If an individual needs leave as a reasonable accommodation under the PWFA or, indeed, any reasonable accommodation other than the temporary suspension of an essential function, only the first definition of “qualified” is relevant.   In the case of leave, the question would be whether the individual, 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). Furthermore, for some workers, leave to recover from childbirth will not require a reasonable accommodation because they have a right to leave under Federal, State, or local law or as part of an employer policy. Thus, for the purpose of determining whether the employee is qualified under the second prong of “qualified” regarding the suspension of an essential function, the Commission does not intend for employers or workers to count time on leave for recovery from childbirth.

The EEOC believes that unpaid leaves of absence must be provided as a reasonable accommodation even if the employee has exhaust their FMLA entitlement, etc.

Leave, including intermittent leave, may be a reasonable accommodation even if the covered entity does not offer it as an employee benefit.  If an employee requests leave as an accommodation or if there is no other reasonable accommodation that does not cause an undue hardship, the covered entity must consider providing leave as a reasonable accommodation under the PWFA, even if the employee is not eligible for leave under the employer's leave policy or the employee has exhausted the leave the covered entity provides as a benefit (including leave exhausted under a workers’ compensation program, the FMLA, or similar State or local laws).

The rule also provides that leave to recover from childbirth, miscarriage, stillbirth, or other related conditions is a potential reasonable accommodation (absent undue hardship). The rule further explains that workers protected by the PWFA must be permitted to choose whether to use paid leave (whether accrued, as part of a short-term disability program, or as part of any other employee benefit) or unpaid leave to the same extent that the covered entity allows employees using leave for reasons unrelated to pregnancy, childbirth, or related medical conditions to choose between these various types of leave.  However, as under the ADA, an employer is not required to provide additional paid leave under the PWFA beyond the amount to which the employee is otherwise entitled.

The EEOC would also require production standards to be relaxed when a worker takes a leave of absence (of any length) under the PWFA:

if the reasonable accommodation is leave, the production standard may need to be prorated to account for the reduced amount of time the employee worked.  For example, if a call center employee with a known limitation requests and is granted two hours of leave in the afternoon for rest, the employee’s required number of calls may need to be reduced proportionately, as could the employee’s pay.

As under the ADA, an employee with a known limitation who is granted leave as a reasonable accommodation under the PWFA is entitled to return to their same position unless the employer demonstrates that holding open the position would impose an undue hardship. Likewise, an employer must continue an employee’s health insurance benefits during their leave period to the extent that it does so for other employees in a similar leave status.

Undue Hardship

As with the ADA, if the employer can show undue hardship, it can lawfully deny the requested leave of absence (assuming that it would not be covered by the FMLA).  Reasons that could support an undue hardship denial include “length, frequency, or unpredictable nature of the time off that was requested.”  “As with the ADA, in determining whether leave under the PWFA causes an undue hardship, an employer may consider leave that the employee has already used under, for example, the FMLA.”  The EEOC then cites in a footnote to the following examples from its 2016 Technical Assistance on Leave as a Reasonable Accommodation: 

Example 17: An employee has exhausted her FMLA leave but requires 15 additional days of leave due to her disability. In determining whether an undue hardship exists, the employer may consider the impact of the 12 weeks of FMLA leave already granted and the additional impact on the employer's operations in granting three more weeks of leave.

Example 18: An employee has exhausted both his FMLA leave and the additional eight weeks of leave available under the employer's leave program, but requires another four weeks of leave due to his disability. In determining whether an undue hardship exists, the employer may consider the impact of the 20 weeks of leave already granted and the additional impact on the employer's operations in granting four more weeks of leave.

Temporary Elimination of Essential Job Functions

Section 1636.3(f)(2) sets out a secondary standard for evaluating accommodation requests.  This standard eliminates the general ADA rule that an employer need not eliminate an essential job function as a reasonable accommodation (except that courts have required it for temporary attendance and leave of absences):

(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.

This secondary standard only applies when the worker cannot perform an essential job function because of a known limitation under the PWFA. “It is not relevant in any other circumstance.”   Temporary is construed as anything other than permanent or for a limited time.   It may extend beyond the near future.

“The rule defines “in the near future” to mean generally forty weeks from the start of the temporary suspension of an essential function. This is based on the time of a full-term pregnancy (forty weeks).”   Nonetheless, the EEOC also uses the 40 week “temporary standard” even for when the worker is not or is no longer pregnant because “there may be physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions for which workers may seek the temporary suspension of an essential function when the worker is not currently pregnant. These conditions include pre-pregnancy limitations such as infertility, and post-pregnancy limitations such as acute cardio-vascular problems that are a consequence of the pregnancy. Although the length of pre- and post- partum physical or mental conditions will vary, the Commission proposes using “generally forty weeks” to measure whether the worker meets the “in the near future” requirement in the second definition of “qualified” in every situation where the reasonable accommodation sought under the PWFA is the temporary suspension of one or more essential functions.”  Another factor is that a mother’s mortality seems most at risk following birth than before it.

In any event, the employer may still deny a lengthy accommodation request under this standard if it poses an undue hardship.

The Commission emphasizes that the definition in this section does not mean that the essential function(s) must always be suspended for forty weeks, or that if an employee seeks the temporary suspension of an essential function(s) for forty weeks it must be automatically granted. 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 forty weeks will not, on its own, render a worker unqualified under the PWFA.

Further, the Commission recognizes that workers may need an essential function temporarily suspended because of pregnancy; may take leave to recover from childbirth; and, upon returning to work, may need the same essential function or a different one temporarily suspended due to a new or different physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

With respect to measuring the commencement of the 40 weeks, it restarts with each accommodation request.  It would be difficult, if not impossible, for a woman to predict during pregnancy what accommodations she will need after returning from giving birth.

[T]he determination of “in the near future” shall be made when the employee asks for each accommodation that requires the suspension of one or more essential functions. Thus, a worker who is three months pregnant seeking an accommodation of the temporary suspension of an essential function will meet the definition of “qualified” for “in the near future” because the pregnancy will be over in less than forty weeks. When the worker returns from leave after childbirth, if the worker needs an essential function temporarily suspended, they will meet the definition of “qualified” for “in the near future” if they could perform the essential function within forty weeks of the suspension. In other words, for “in the near future,” the forty weeks would restart once the pregnancy is over and the worker returns to work after leave.

Finally, the standard requires that the job function elimination can be reasonably accommodated without undue hardship.  The EEOC explains:

For some positions, this may mean that one or more essential functions are temporarily suspended, with or without reassignment to someone else, and the employee continues to perform the remaining functions of the job. For other jobs, some of the essential functions may be temporarily suspended, with or without reassignment to someone else, and the employee may be assigned other tasks to replace them. In yet other situations, one or more essential functions may be temporarily suspended, with or without reassignment to someone else, and the employee may perform the functions of a different job to which the employer temporarily transfers or assigns them, or the employee may participate in the employer’s light or modified duty program. Throughout this process, as with other reasonable accommodation requests, an employer may need to consider more than one alternative to identify a reasonable accommodation that does not pose an undue hardship. Depending on how the temporary suspension is accomplished, the covered entity may have to prorate or change a performance or production standard so that the accommodation is effective.

As previously mentioned, the conditions which must be accommodated under the PWFA do not need to constitute disabilities. 

Under the PWFA and the rule, a worker may seek a reasonable accommodation in order to alleviate increased pain or increased risk to health that is attributable to the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that has been communicated to the employer (the known limitation).

This PWFA accommodation standard would be applicable in the following circumstances:

·        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 worker to perform that function without lifting more than 20 pounds;

·        a pregnant police officer is unable to perform patrol duties during the third through ninth months of the pregnancy, patrol duties are an essential function of the job, and there is not a reasonable accommodation that will allow the worker to perform the essential functions of the patrol position.

·        Launa has been working as a landscaper for two years, and her job regularly involves moving bags of soil that weigh 35-40 pounds. Launa becomes pregnant and lets her supervisor know that she has a lifting restriction of 20 pounds because of her pregnancy . . . If there is no device or other reasonable accommodation (or the device or other reasonable accommodation is too expensive or otherwise causes undue hardship for the employer) the employer must consider whether Launa meets the second definition of qualified: whether (1) the inability to perform the essential function is temporary, (2) Launa could perform the essential function in the near future, and (3) the inability to perform the essential function can be reasonably accommodated.

·        One month into a pregnancy, Akira, a worker 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 the essential functions of this job involves regular exposure to these chemicals. Akira talks to her supervisor, explains her limitation, and asks that she be allowed to switch duties with another worker whose job does not require the same exposure but otherwise involves the same functions. There are numerous other tasks that Akira could accomplish while not being exposed to the chemicals.

·        Two months into a pregnancy, Lydia, a delivery driver, is told by her health care provider that she should not lift more than 20 pounds. Lydia routinely has to lift 30-40 pounds as part of the job. She discusses the limitation with her employer. The employer is unable to provide Lydia with assistance in lifting packages, and Lydia requests placement in the employer’s light duty program, which is used for drivers who have on-the-job injuries.

·        Celia is a factory worker whose job requires her to move boxes that weigh 50 pounds regularly. Prior to her pregnancy, Celia occasionally felt pain in her knee when she walked for extended periods of time. After returning to work after having a cesarean section, Celia’s health care provider says she should limit the tasks that require moving boxes to no more than 30 pounds for three months because heavier lifting could increase the risk to her health and recovery. Celia can seek an accommodation that would help her lift between 30 and 50 pounds because it is needed for her known limitation related to childbirth. However, the PWFA would not require the employer to provide an accommodation regarding Celia’s knee pain because that situation is not attributable to Celia’s known limitation, unless there is evidence that the pain in walking was exacerbated by Celia’s pregnancy, childbirth, or related medical conditions. [The ADA might be applicable if the PWFA is not and would not require the elimination of an essential job function.]

·        Lucille has opioid use disorder that she controls with medication. After giving birth, she experiences postpartum depression. As a result, she is put on an additional medication that she must take with food, and she starts therapy with a new provider. Under the PWFA, Lucille requests that she be allowed to take breaks to eat when she needs to take her medication and that she be allowed to use intermittent leave to attend her therapy appointments.

·        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. Once she becomes pregnant, Jackie seeks the accommodation of a temporary suspension of an essential function of working with the chemicals because the chemicals create an increased risk to her pregnancy. The employer provides the accommodation. After Jackie gives birth and returns to work, she no longer has any known limitations. Thus, she can be assigned to work with the chemicals again even if she would rather not do that work, because the PWFA only requires an employer to provide an accommodation that is needed due to the known limitation related to pregnancy, childbirth, or related medical conditions.

·        Margaret is a retail worker who is pregnant. Because of her pregnancy, Margaret feels pain in her back and legs when she has to move stacks of clothing from one area to the other, which is one of the essential functions of her position. She can still manage to move the clothes, but, because of the pain, she requests a cart to use when she is moving the garments.

 

The employer may still deny the request if it can show undue hardship.  “If there is no reasonable accommodation that allows the worker to continue to work, absent undue hardship, the employee may be qualified for leave as a reasonable accommodation if leave does not cause an undue hardship.”

More to follow tomorrow.

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.

Sixth Circuit Refused to Enforce Arbitration e-form Agreement Which Employee Denied Seeing

Last week, the Sixth Circuit reversed an order to compel an employee’s FLSA claim to arbitration on the grounds that there was a factual dispute as to whether the plaintiff employee had actually seen and, thus, agreed to the arbitration agreement.  Bazemore v. Papa John’s USA, Inc., No. 22-6133 (6^th Cir. 7/20/23).  The employer utilized eforms and electronic signatures during employee orientation.    The Court found that the plaintiff’s sworn denial of having ever seen the agreement was sufficient to require a trial on the issue of whether he had ever agreed to it even if he continued to work after being presented with the agreement.  While “[a]n electronic signature can show a party’s assent,” such “signature is legally valid only when “made by the action of the person the signature purports to represent”—which is itself a question of fact.”

According to the Court’s opinion, the plaintiff brought an FLSA action claiming that the failure to reimburse him for travel expenses reduced his wages below the minimum wage.  The employer moved to compel arbitration based on an arbitration agreement which it claimed that he had electronically signed when hired.  The process involved him signing in using his assigned user id and own password, scrolling through the document and then checking boxes to indicate agreement.  Employees cannot begin work until they complete the forms.  The employee responded that he had never seen such an agreement, thus, impliedly denying that the electronic signature was his.  He indicated that this manager had been observed logging in and completing training materials for employees and sought targeted materials about the document in discovery.  There is no indication that he denied having ever seen or signed any other documents during his orientation.   The trial court enforced the arbitration agreement and disregarded the plaintiff’s “convenient lapse of memory,” but the Sixth Circuit reversed.

The Court found that the employer bore the burden of proving the existing of a binding agreement.  “If a genuine issue of material fact arises as to whether such an agreement exists, the court ‘shall proceed summarily to the trial thereof.”’  While “[a]n electronic signature can show a party’s assent,” such “signature is legally valid only when “made by the action of the person the signature purports to represent”—which is itself a question of fact.”

Here, the parties presented conflicting evidence on that point. Papa John’s pointed to an e-Form record of the arbitration agreement. That record has Bazemore’s name typed at the bottom with an electronic signature “By UserID: 467073”—which Greene says is Bazemore’s user ID. Yet Bazemore submitted a sworn declaration in which he repeatedly said that he never saw the arbitration agreement—even though, as Greene said, the e-Form would have required him to scroll through the entire agreement before signing it. We see no reason whatever that would prevent a reasonable factfinder from believing Bazemore’s testimony—which means that his testimony created a genuine issue of material fact.

The Court found that the trial court improperly put the burden of proof on the plaintiff and failed to credit his denial of ever seeing the document, finding instead that the lack of a clear denial that he had signed it was insufficient to disprove the electronic signature.

The Court rejected the employer’s alternative argument that the plaintiff’s continued employment was sufficient manifestation of assent to the terms of the arbitration agreement. 

Kentucky courts have held that the “conduct of a party is not effective as a manifestation of his assent” unless the party has “reason to know that the other party may infer from his conduct that he assents.” Furtula, 438 S.W.3d at 309. And Bazemore had no reason to think that his continued employment could indicate that he has agreed to arbitrate his claims—given that he was, at the same time, arguing in court that he never agreed to arbitration. Indeed, to hold otherwise would force Bazemore to give up either his job or his day in court.

The Court seemed unaware that courts have found that no signature is required under the Federal Arbitration Act and employers may require arbitration agreements as a term and condition of continued employment, assuming, of course, that the employee was given notice of the terms of the agreement, which the plaintiff here denied.

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.