RBS News

Pregnant Workers Fairness ActFinal Regulations Issued

Background

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued the final regulations implementing the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023. Under the PWFA, employers with at least 15 employees must reasonably accommodate qualified employees or applicants having known limitations related to, affected by or arising out of pregnancy, childbirth or related medical conditions, unless the accommodation will cause undue hardship on the employer’s business.

The PWFA is an extension of the Americans with Disabilities Act (ADA) and its reasonable accommodation requirements. In the more than 400 pages of regulations just issued, the EEOC turbo-charged the PWFA into a significantly burdensome expansion of employee entitlements that must be understood and followed by all covered employers to avoid litigation exposure. There are a number of significant differences between the ADA and PWFA that need to be understood in dealing with issues under PWFA. Below are the six most important differences all employers need to immediately understand and begin to implement.

Essential Differences between the ADA and the PWFA

1. The Interactive Process.  The interactive process is central in the determination of requests for accommodations under both the ADA and PWFA. However, while the ADA does not require the use of the interactive process, the PWFA mandates that it be implemented before requiring a qualified employee to accept a reasonable accommodation. In other words, a request for an accommodation under the PWFA cannot be denied unless and until the interactive process has been initiated and completed.

2. Definition of “Qualified” Applicant/Employee.  The PWFA regulations have expanded the ADA definition of a “qualified” applicant and employee entitled to coverage under the PWFA. The ADA instructs that a person is qualified if they can perform the essential functions of the position, with or without reasonable accommodation. The EEOC instructs that under the PWFA, a qualified person is someone who cannot “temporarily” perform the essential functions of the position but will be able to perform them “in the near future.” The regulations define “temporary” as a limited time, not permanent, and may extend beyond “in the near future,” which is defined as generally, but not automatically, 40 weeks.

3. Definition of Reasonable Accommodation.  Related to the expansive definition of “qualified,” the definition of a “reasonable accommodation” is also more expansively defined in the PWFA than in the ADA.  The reason is due to the temporary, limited time period an accommodation will be needed. Therefore, an accommodation that may be deemed unreasonable under the ADA will, in fact, be reasonable under the PWFA. For example, an accommodation under the ADA is unreasonable if it excuses the performance of an essential job duty. The PWFA, on the other hand, requires that an essential job duty be excused where the employee’s inability to perform it is for a “temporary” period. 

All employers must also keep in mind that a leave of absence under the PWFA is an accommodation of last resort. In other words, employees cannot be required to take a leave of absence if another accommodation is available that allows them to continue working.

4. Requesting Medical Information.  Yet another difference between the PWFA and the ADA is the right of an employer to request medical information. Under the ADA, requesting medical information is uniformly permitted. However, under the PWFA, medical information can only be requested when the employer has “reasonable concerns” as to whether the employee’s condition or limitation is related to, affected by or arising out of pregnancy, childbirth or related medical conditions.

In requesting medical information, the employer must be “reasonable” in its request for documentation and not seek more information than is required in order to make a proper determination. The regulations define “reasonable” as meaning requiring documentation that is sufficient to describe or confirm: (1) the physical or mental condition; (2) the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3) the change or adjustment at work needed due to the limitation.

5. Threshold for the Severity of the Condition.  Under the ADA, a disability-related physical or mental condition must substantially limit one or more major life activities. Under the PWFA, there is no threshold for the severity of the pregnancy-related condition and employees with healthy and normal pregnancies can seek and receive accommodations. The regulations provide that medical conditions can include impediments or problems that are modest, minor, or episodic. It could also include actions that need to be taken to maintain the employee’s health or the health of their pregnancy, or even if the worker is simply seeking health care for their pregnancy, childbirth, or related medical condition.

6. Definition of “Undue Hardship.”  Both the ADA and the PWFA require that an “undue hardship” must exist in order to deny an accommodation request and define it as significant difficulty or expense for the operation of the employer. However, in assessing “undue hardship” under the PWFA the following criteria must be considered:

• The length of time the employee or applicant will be unable to perform the essential function; 
• Whether there is other work for the employee or applicant to accomplish; 
• The nature of the essential function, including its frequency, whether other employees in similar positions have had their essential functions temporarily suspended, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function in question, if needed; and 
• Whether the essential function can be postponed or remain unperformed for any length of time and, if so, for how long.

As becomes apparent, it will be very difficult for an employer to sustain its burden of providing “undue hardship.”

Additional Provisions Imposed by the PWFA

Definition of “pregnancy, childbirth or related medical conditions.”  The EEOC defines “pregnancy, childbirth or related medical conditions” very expansively and includes the following:

• current, past, and potential pregnancy;
• infertility and fertility treatment;
• the use of contraception;
• termination of pregnancy – including via miscarriage, stillbirth, or abortion;
• pregnancy-related sicknesses, ranging from nausea or vomiting to edema, from preeclampsia to carpal tunnel syndrome, and many other pregnancy-related conditions;
• lactation and issues associated with lactation; and
• menstruation.

 The above list is not exhaustive and therefore the interactive process must be initiated in each instance an accommodation request is made to explore and identify other possible accommodations.

Accommodations for Abortions.  Because the EEOC has included “abortion” in its description of “termination of pregnancy,” the new regulations now require that employers provide reasonable accommodations for an abortion procedure or recovery. Indeed, this is one of the most significant of several key developments contained in the final regulations.

On April 25, 2024, a coalition of attorneys generals from 17 states (not Ohio) filed a lawsuit in Arkansas seeking to invalidate the “abortion-accommodation mandate”. According to the lawsuit, the EEOC rule “constitutes an unconstitutional federal overreach that infringes on existing state laws and exceeds the scope of the agency’s authority.” In response, the EEOC states that nothing in the PWFA requires, or forbids, an employer to pay for health insurance benefits for an abortion. We will keep you informed as this case winds its way through the courts.  

Examples of Reasonable Accommodations.  Employers are provided with several examples of reasonable accommodations that must be considered under the PWFA. However, there are four reasonable accommodations that the EEOC believes, “in virtually all cases,” will be reasonable and do not impose an undue hardship:

• Allowing the carrying of water and drink, as needed, in the employee’s work area;
• Allowing additional restroom breaks;
• Allowing standing or sitting as needed; and
• Allowing breaks, as needed, to eat and drink.

It is the EEOC’s position that none of the above “predictable assessments” of reasonable accommodations should result in demanding documentation beyond a self-attestation.

The other reasonable accommodations identified under the PWFA include:

• Providing closer parking spaces;
• Offering flexible working hours;
• Job restructuring, schedule changes, part-time work, and paid and unpaid leave;
• Acquiring or modifying equipment, uniforms, devices or safety apparel;
• Making existing facilities accessible or modifying the work environment;
• Light duty;
• Telework or remote work;
• Temporarily suspending one or more essential function; and
• Adjusting or modifying workplace policies.

If the facts indicate a “reasonable” need for medical documentation, then the employer may request limited medical information for some or all of these accommodations.

Employers must keep in mind that the above list is not exhaustive and that other accommodations may also be considered to be “reasonable.” Therefore, employers will want to work with the employee during the interactive process to review these options and to identify other possible accommodations.

New Regulations Take Effect June 18, 2024.  The new regulations take effect 60 days from their publication date in the Federal Register.  However, there is always the possibility that the effective date may be delayed or set aside completely by the pending court action on the abortion issue or any newer case that may be filed. We wilk

Next Steps for Employers.

• Review and update your organization’s accommodations review process and be sure that it now includes the interactive process.
• Consider developing a separate accommodations process for PWFA-related requests.
• All HR departments must be updated on the obligations imposed under the PWFA and the differences between the ADA and PWFA analysis, including having access to the list of suggested accommodations provided in the Regulations.
• Contact legal counsel before denying any pregnancy or childbirth-related accommodation request under the undue hardship theory given the high stakes involved.

Upcoming Annual RBS/CRM Safety Seminar on June 12, 2024

RBS, in conjunction with CRM, will be holding its 20^th annual safety seminar on June 12, 2024. In addition to updating you on all BWC-related happenings, we will focus on the PWFA and all of the issues related thereto. Please sign up for this seminar, which is free to our clients.

As always, please contact the labor and employment law team at RBS with any questions or concerns.