On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) published its Final Rule and interpretative guidance implementing the Pregnant Workers Fairness Act, 42 USC
§2000gg (PWFA). This article will address some of the more significant provisions of the Final Rule.
- Background
On December 29, 2022, President Biden signed the PWFA into law, which requires employers with 15 or more employees to provide reasonable accommodations to a qualified employee or applicant’s known limitation related to, affected by or arising out of pregnancy, childbirth, or related medical conditions, subject to undue hardship. Of course, there are already federal (and state) laws that provide protections for pregnancy, and related medical conditions, such as the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Family and Medical Leave Act (FMLA). The PWFA was enacted arguably to address gaps in existing laws, and the protections the PWFA provides for employees (and the burdens it creates for employers) go much further than existing laws.
- “Related Medical Conditions” – broader than the ADA
In addition to pregnancy and childbirth, the PWFA covers “related medical conditions.” The Final Rule provides examples of conditions that may be “related medical conditions,” such as miscarriage, stillbirth or abortion; nerve injuries; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; anxiety, depression or psychosis; postpartum depression, anxiety or psychosis; menstruation; lactation and conditions related to lactation. The Final Rule notes that the list is not exhaustive.
The EEOC goes to some length to address the decision to include abortion in its definition of “related medical conditions,” noting that including abortion in the list does not require an employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment including an abortion, and does not require an employer to pay any travel related expenses for an abortion, but that the type of accommodation most likely to be sought under the PWFA regarding an abortion will be time off to attend a medical appointment or for recovery.
- Documentation – more restrictive than the ADA
Under the PWFA, an employer may not delay or deny 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 employer to determine whether to provide the accommodation. When an employer seeks documentation under the PWFA, it is limited to documentation “that is reasonable under the circumstances… to determine whether to grant the accommodation.” The Final Rule contains five (5) examples of when it will not be considered reasonable for an employer to seek supporting documentation from an employee to
support an accommodation request: (1) where the need is obvious; (2) when the employer already has sufficient information; (3) when a pregnant employee seeks a “predictable assessments” accommodation, such to carry/drink water during the work day, take additional restroom or eat/drink breaks, or seeks modifications in sitting/standing as part of her job; (4) when the reasonable accommodation is related pumping or (5) when the requested accommodation is available to employees (without known limitations under the PWFA) pursuant to a covered entity’s policies or practices without submitting supporting documentation.
- “Qualified Employee” Defined – broader than the ADA
In a departure from the ADA, the PWFA defines a “qualified employee” as one “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—
- 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.”
In the Final Rule, the EEOC interprets these provisions to require suspension of one or more essential functions of a position on a temporary basis. The Final Rule provides that suspension of essential functions could be accomplished either by the employee performing the remaining functions of their position or other arrangements being made such as performing other functions assigned by the covered entity, or the employee being assigned or transferred temporarily to a different job, or light or modified duty, all of which must be considered through the interactive process.
- Reasonable Accommodations and Undue Hardship
Like the ADA, the PWFA provides it is unlawful for a covered entity to not make reasonable accommodations for covered limitations unless the entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business. Unlike the ADA, as noted above, the PWFA Final Rule provides that the temporary suspension of one or more essential functions is considered a potential reasonable accommodation.
In the Final Rule, the EEOC provides examples of reasonable accommodations, which goes further than the ADA, including steps such as job restructuring, change of work site, or “adjustments to allow an employee to work without increased pain or increased risk to the employee’s health or the health of the pregnancy”; and temporarily suspending one or more essential job functions.
The Final Rule lists factors to be considered in the undue hardship analysis, most of which are very similar to the same analysis under the ADA. However, whether the “temporary suspension of an essential function(s)” would cause undue hardship has its own list of considerations, which includes “whether there are other employees, temporary employees, or third parties who can performorbehiredtoperformtheessentialfunctions….(and)whethertheessentialfunctionscan be postponed or remain unperformed for any length of time and, if so, for how long.” While the EEOC notes that an employer “is not required to invent work for an employee,” this provision will require employers to analyze closely the essential functions of the position that the employee is
unable to perform, and whether “other, temporary or third parties” can perform that essential function on a temporary basis.
The Commission notes that the temporary suspension of an essential function must be able to be reasonably accommodated and the employer retains the ability to establish that the reasonable accommodation causes an undue hardship. The Commission notes that an employee’s request to indefinitely suspend an essential function cannot reasonably be considered to meet the standard for “in the near future,” however, the temporary suspension of an essential function is not necessarily “indefinite” simply because the employee cannot pinpoint an exact date when they would be able to perform the essential functions.
The Commission further notes that employees may need temporary suspension of essential functions on more than one occasion. For example, an employee may need an essential function temporarily suspended during her pregnancy. After the pregnancy, the employee may be able to perform that essential function, but might need a different essential function temporarily suspended for a pregnancy-related condition, such as postpartum depression.
7. Examples
In the appendix to the Final Rule, the Commission provides several examples of how the regulations apply. In one example, an employee who works in a paint manufacturing plant is told by her provider to avoid certain chemicals for the remainder of her pregnancy. However, an essential function of her job involves regular exposure to these chemicals. In the example, the Commission concludes that the employee is nevertheless “qualified” for her position because “the employer can suspend the essential functions that require her to work with chemicals, while allowing her to do the remainder of her job.”
In another example, a pregnant employee is employed as a park ranger, an essential function of which involves patrolling the park and driving, which the employee is not able to perform for 12 weeks. So, the employee seeks a 12-week suspension of the essential duty of patrolling the park. In the example, the Commission concludes “(the employee’s) need to temporarily suspend an essential function of her job may be reasonably accommodated by temporarily suspending the essential function and temporarily assigning (her) to duties such as answering questions and selling merchandise at the (park) visitor’s center.”
Of course, the examples do not address how the essential job functions will be accomplished during the suspension in order to get the overall job done – that would be up to the employer. If the employer considers it undue hardship, note the list of factors above to be considered in evaluating whether it would constitute undue hardship.
CONCLUSION
Employers should not consider the PWFA or the Final Rule simply a reiteration of existing laws. The PWFA will clearly present challenges for employers. Employers should act promptly to ensure policies are updated to address compliance with the PWFA. Supervisory and managerial training is essential for compliance and employers should seek input from employment counsel for guidance as issues arise. The attorneys at Wimberly Lawson are available to assist in providing guidance to employers and in providing supervisory/managerial training.
