The U.S. Equal Employment Opportunity Commission (EEOC) has proposed regulations intended to direct employers how they should adhere to the new Pregnant Workers Fairness Act (PWFA). It officially went into full effect on June 27 for organizations with 15 or more workers lacking any detail about how the new law would be enforced.
In general, employers will be expected to make reasonable accommodations for the “known limitations” of applicants and employees who are experiencing pregnancy and related conditions. “If you have had dealings with reasonable accommodation under the Americans with Disabilities Act (ADA), you will get a definite sense of déjà vu,” observes Robin Shea, a partner in the law firm of Constangy Brooks Smith & Prophete.
Brigid A. Harrington, an attorney with the law firm of Bowditch & Dewey, makes a similar point, but outlines some of the notable differences in the new law:
• Employers are only required to provide accommodations if the employee has communicated to them that they have a limitation arising out of pregnancy or a related condition.
• An individual may be considered a “qualified” applicant or employee even if they cannot perform the essential functions of their job, if their inability to perform essential functions is temporary, could be resolved in the “near future” (generally meaning within 40 weeks), and the person could be reasonably accommodated during the period of time that they cannot perform the essential functions.
• Employers also may not require employees who have experienced pregnancy, childbirth or related conditions to take leave—even if that employee’s ability to do their job is limited—if they can reasonably accommodate the employee in another way.
• Conditions related to pregnancy are interpreted broadly, which includes not only childbirth, breastfeeding, miscarriages and abortions, but also limitations that are due to menstruation, infertility and fertility treatments, and endometriosis.
Employers may not unnecessarily delay the process for considering and providing accommodations under the PWFA. Notices must be posted in conspicuous places in the worksite describing applicable PWFA provisions. Employers also are prohibited from retaliating against employees for exercising rights and from coercing employees to forgo rights under the PWFA.
The framework for compliance with the proposed rules should be familiar to many employers because it tracks Title VII of the Civil Rights Act and the ADA, Harrington notes. They also prohibit discrimination and retaliation and require employers to make reasonable accommodations, which the employer does not have to provide if doing so causes an undue hardship to the operation of its business.
The class of employees who will be protected includes workers who are pregnant, or who have a physical or mental condition related to, affected by or arising from pregnancy, childbirth or related medical conditions.
ADA Similarities, Differences
However, Shea explains that in contrast with the ADA, the PWFA does not require an employee be “substantially limited” and does not require that the condition be very long term in nature. Instead, the new law addresses limitations that arise during pregnancy, including morning sickness, lifting restrictions, postpartum depression and other conditions that may go away in a relatively short time.
However, she stresses that the PWFA applies to conditions that may occur outside the roughly nine months of pregnancy, including trying to get pregnant—and trying not to be pregnant. In addition to pregnancy, childbirth and labor, the regulations spell out a long “non-exhaustive list” of conditions that will be covered if related to pregnancy.
These include 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 and anemia.
Also: 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 .
While the PWFA incorporates the ADA’s definition of reasonable accommodation, which requires an individualized assessment, the EEOC also lists four specific accommodations it deems will be considered to be de facto reasonable, referring to these as “predictable assessments,” Shea adds.
The EEOC presumes that these specific modifications will not impose an undue hardship “in virtually all cases”—meaning that employers will be expected to grant these requests automatically without question or requiring evidence of need.
Medical documentation is not necessary for accommodations that can include carrying water and drinking as needed; taking additional restroom breaks; sitting, for those whose work requires standing, and standing, for those whose work requires sitting; and breaks as needed to eat and drink. These accommodations are expected to be provided in virtually all circumstances.
Another difference between the current ADA procedures is that the proposed rules take more of a laid-back approach to the employee’s need to make a case in the reasonable accommodation process, Shea says. Generally, the EEOC envisions that employers will receive informal, word-of-mouth requests for pregnancy accommodation and will not need a doctor’s note. Employers would not be allowed to require that initial accommodation requests be made in writing or by filling out a form, although they would be able to request that later.
Shea also notes that portions of the proposed rules dealing accommodating lactation needs are similar to what is now required under the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act .The proposed PWFA regulations are different in that they would require employers to provide lactation accommodations beyond one year after the baby’s birth; and ensure that the lactation area “is in reasonable proximity to the employee’s usual work area.”
The PWFA proposed rules also require that the lactation area 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.”