10/25/2023

Administrative Guidance on Pregnancy Workers Fairness Act

Consult this explanation by OSAP Mission Partner Frantz Ward

On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) went into effect. Modeled after the Americans with Disabilities Act (ADA), the PWFA requires employers to provide reasonable accommodations to employees based upon known limitations relating to pregnancy, childbirth or related medical conditions. Just like the ADA, employers who receive pregnancy accommodation requests should follow the interactive process. Also like the ADA, employers are not required to grant an accommodation request if it imposes an undue hardship.

As with any new law, employers have had many questions about the PWFA. Thankfully, the Equal Employment Opportunity Commission (EEOC) recently provided guidance through a Notice of Proposed Rulemaking. Through it, the EEOC proposed rules which will apply to employers’ obligations under the PWFA. Although we do not expect the rule to be finalized until later this year, it provides significant insights for employers.

With the proposed rule’s full text available online through the Federal Register, the following provides the rule’s answers to some of employers’ most pressing questions:

What is a “known limitation?”

A limitation is known to the employer if the employee or her representative has communicated it to them.  A limitation is a physical or mental condition related to, affected by or arising out of pregnancy, childbirth or related medical conditions. In contrast to the ADA, the limitation does not need to rise to the level of a disability to trigger the employer’s duty to provide an accommodation. Instead, a limitation can be a “modest, minor and/or episodic impediment or problem."

What are “related medical conditions?”

The proposed rule lists several potential issues that could be considered “related medical conditions.” Those include, for example: 1) termination of pregnancy (miscarriage, stillbirth or abortion); 2) infertility/fertility treatments; 3) anxiety, depression, psychosis or postpartum depression; 4) menstrual cycles; 5) use of birth control; and 6) and lactation. This list is not all-encompassing, and the proposed rule describes additional potential “related medical conditions.”

Can the employer request medical documentation during the interactive process?

The EEOC suggests that documentation should not commonly be needed from an employee seeking an accommodation because the accommodation requests should be “simple and straightforward.” An employer may request medical documentation if it has “reasonable concerns” about: whether the employee’s limitation is caused by pregnancy, childbirth, or a related medical condition; and/or whether the accommodation is necessary. Ultimately, requesting medical documentation should be the exception, not the rule.

What is a reasonable accommodation under the PWFA?

In the proposed rule, the EEOC lists accommodations that it has determined are presumptively reasonable and provides other examples of potential accommodations. Presumptively reasonable accommodations include allowing an employee: 1) to carry and drink water during the workday; 2) additional restroom breaks; 3) breaks to eat and drink; and 4) to sit or stand when necessary. The EEOC concluded these accommodations will not cause an undue hardship in virtually all situations. The rule further describes the following additional potential reasonable accommodations: 1) light-duty assignments; 2) providing an employee with different equipment, uniforms or devices; 3) closer parking; 4) schedule changes/flexible hours; 5) temporarily suspending one or more of the employee’s essential job functions; and 6) teleworking. Another potential reasonable accommodation is providing the employee with a leave of absence (paid or unpaid). However, a leave of absence should only be offered if there are no other available reasonable accommodations.

What if an employee is unable to perform her essential job functions due to pregnancy, childbirth or a related medical condition?

In contrast to the ADA, the EEOC suggests that temporarily excusing an employee from performing her essential job functions may be a reasonable accommodation. Employers only need to excuse an employee from performing an essential job function if the employee’s inability to perform the duty is 1) temporary, 2) the essential function can be performed “in the near future,” and 3) the inability to perform the essential function cannot otherwise be reasonably accommodated. “In the near future” generally means 40 weeks.

Although the rule has not been finalized, employers should begin implementing policies and procedures in line with the proposed rule. As the EEOC noted, voluntary compliance with the proposed rule and communication between employers and employees are key to the PWFA’s success.

The attorneys at Frantz Ward will continue to monitor the proposed rule and PWFA developments. Should you have questions or want additional guidance, please do not hesitate to reach out to Andrew Cleves or another member of Frantz Ward’s Labor and Employment Group.