EEOC Proposed PWFA Regulations Give Employers Insight into New Duties

The U.S. Equal Employment Opportunity Commission (EEOC) released proposed regulations on Aug. 7 to implement the new Pregnant Workers Fairness Act (PWFA). The new rules offer details on expanded employer duties and examples of accommodations employers may be expected to provide.

The PWFA requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” This law builds on existing protections against pregnancy discrimination under Title VII of the Civil Rights Act and access to reasonable accommodations under the Americans with Disabilities Act (ADA). While the PWFA mirrors Title VII and the ADA in many instances, the proposed regulations make clear that there are differences.

According to the regulations, “limitation” means a physical or mental condition related to, affected by or arising out of pregnancy, childbirth or related medical conditions, whether or not such condition meets the definition of a disability under the ADA. The proposed rules include a broad definition of “pregnancy, childbirth or related medical conditions,” which includes current, past and potential pregnancy, lactation, use of birth control, fertility treatment, menstruation, miscarriages, and abortion. The physical or mental condition that is the limitation may be a modest, minor or episodic impediment or problem.

This indicates that under the proposed rule, there is no threshold for severity of the physical or mental condition for accommodation requests. The condition also may be that a worker affected by pregnancy, childbirth or related medical conditions has a need or problem related to maintaining their health or the health of their pregnancy. The definition also includes when a worker is seeking health care related to pregnancy, childbirth or a related medical condition itself.

The proposed regulations clarify that an employee or applicant, or their representative, must communicate a covered limitation under the PWFA to the employer for it to be considered a known limitation entitled to reasonable accommodation. However, an employer cannot require a specific format or method for this communication. The employee or applicant need only communicate to a supervisor, manager or human resources representative - or another designated point of contact - that they have a limitation and need an adjustment or change at work. Employers can develop a designated process for requesting accommodations but may not treat requests that do not follow this process as not having been communicated.

Further, the PWFA has two definitions of “qualified” employees: one that uses language from the ADA and another that focuses on an employee’s inability to perform an essential function. The second definition of the PWFA allows an employee or applicant to be “qualified” if:

• • Any inability to perform an essential function is for a temporary period,
  • The essential function could be performed in the near future, and
  • The inability to perform the essential function can be reasonably accommodated.

The proposed rule defines “temporary” as lasting for a limited time, not permanent, and may extend beyond “in the near future,” while “in the near future” is defined as generally 40 weeks from the start of the temporary suspension of an essential function. The 40-week period is based on the length of a full-term pregnancy, but the regulations indicate that it could be longer than 40 weeks. Consider this example from the proposed regulations:

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 40 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 40 weeks of the suspension. In other words, for “in the near future,” the 40 weeks would restart once the pregnancy is over and the worker returns to work after leave.

Practically, the proposed regulations also provide examples of reasonable accommodations under the PWFA, including:

• • More frequent breaks
  • Parking
  • Acquiring or modifying equipment, uniforms, or devices
  • Allowing seating for jobs that require standing or standing in jobs that require sitting
  • Appropriate adjustment or modification of exams 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-related appointments and to recover from childbirth
  • Assignment to light duty
  • Telework
  • 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

The proposed regulations further list a limited number of simple modifications that are virtually always reasonable accommodations, including:

1. 1. Allowing an employee to carry water and drink as needed in the employee’s work area
   2. Allowing additional restroom breaks
   3. Allowing an employee whose work requires standing to sit and whose work requires sitting to stand
   4. Allowing breaks as needed to eat and drink

Please contact Camille Schwaner or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.