As you might recall, the federal government expanded employee protections for pregnant employees last year through the Pregnant Workers Fairness Act (PWFA). In a previous blog, we discussed workplace actions that the PWFA explicitly prohibits, such as:
- Not making reasonable accommodations for known limitations related to childbirth, pregnancy, or related medical conditions, unless it would cause undue hardship on the employer;
- Requiring covered employees to accept an accommodation that was not arrived at through an interactive process;
- Denying an employment opportunity to a qualified employee based on the company’s need to make an accommodation for that employee;
- Requiring an employee to take paid or unpaid leave, if another reasonable accommodation could be provided;
- Any adverse action relating to the terms, conditions, and privileges of employment based on an employee’s requesting accommodations related to pregnancy, childbirth, or related conditions.
On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) announced final PWFA regulations, providing further clarity to ensure that both employees and employers understand their rights and duties under the law. The final rule will be published on April 19, 2024 and becomes effective on June 18, 2024 (60 days after publication).
The EEOC regulations provide guidance about which employees are covered under the law, the limitations and medical conditions that are covered, how employees can request a reasonable accommodation, concrete examples of reasonable accommodations employers can provide, and more. The guidance is in response to the hundreds of thousands of comments the EEOC received when it published proposed regs.
Here are details that the new regulations furnished.
Does PWFA govern all employers?
Well, no. But the PWFA applies to private and public sector employers with 15 or more employees. It also applies to federal agencies, employment agencies, and labor organizations.
Who’s protected under PWFA?
Under the PWFA, qualified applicants or employees who have known limitations are protected. A qualified employee or qualified applicant is someone who is either (1) able to perform the essential functions of the job with or without a reasonable accommodation or (2) an employee who can’t perform the essential functions of the job with or without a reasonable accommodation, but her inability to do so is temporary, because she can perform the functions in the near future or her inability to perform can be reasonably accommodated.
What limitations and medical conditions are covered?
Under the PWFA, a limitation is any condition “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” The definition includes uncomplicated pregnancies, miscarriage, postpartum depression, edema, lactation, and vaginal deliveries or caesarian sections.
The regulations provide many examples of limitations, such as symptoms like morning sickness and migraines. The regulations also provide examples of limitations related to taking action to ensure the health of the employee or the employee’s pregnancy, such as not working in the heat if the employee works predominantly outdoors, limiting or avoiding certain physical tasks, or not being around certain chemicals.
What are some examples of reasonable accommodations?
A reasonable accommodation is any change in the work environment or the way things are typically done at work. For example, it can include:
- Providing additional, longer, or more flexible breaks for an employee to drink water, eat, or use the restroom;
- Leave for medical or health care appointments;
- Leave to recover from childbirth or other medical conditions related to childbirth or pregnancy;
- Changing equipment or work stations, such as providing a stool to sit on; and
- Changing an employee’s work schedule to shorter hours, part-time work, or a later start time.
This list is not comprehensive, and many more examples of reasonable accommodations exist.
What’s an undue hardship?
An undue hardship means that the accommodation poses a significant difficulty or expense on the employer. The regulations outline some factors an employer should consider when determining if undue hardship exists. These include:
- The length of time the employee will be unable to perform the essential functions of the job;
- The nature of the essential function, including its frequency;
- Whether the employer has provided previous employees in similar positions a reasonable accommodation;
- Whether there are other employees or third parties who can perform or temporarily be hired to perform the essential functions in question; and
- Whether the essential functions can be postponed or remain unperformed for a length of time.
This list is not exhaustive, and the regulations provide even more factors. They are the same factors employers should consider under the Americans with Disabilities Act (ADA), so to determine whether a proposed accommodation causes an undue hardship, you can look to both the PWFA regulations as well as the ADA.
May an employer require supporting documentation when an employee asks for a reasonable accommodation?
You may request health-related information only in limited circumstances. In many instances, an employer should simply have a discussion with the employee or applicant and that will be sufficient to establish the need for a reasonable accommodation. If, however, you want medical information from the employee or applicant’s health care provider, it must be reasonable to do so. How do you determine this?
Seeking documentation is not reasonable under the circumstances if:
- The limitation and corresponding need for an accommodation is obvious;
- The employer already knows about the limitation, and an adjustment due to the limitation is already in place;
- The employee currently is pregnant and needs additional breaks or accommodations related to sitting or standing;
- The employee is lactating and needs modifications to pump or nurse at work; or
- The employer would not ordinarily ask an employee for documentation in that situation.
If you choose to ask, you’re limited to documentation that only (1) confirms the condition of the employee, (2) confirms that the condition is related to pregnancy or childbirth, or (3) describes the necessary adjustments or changes at work to accommodate the limitations. It’s important to note that under the ADA, you’re required to keep this medical information confidential. The same practice should be followed under the PWFA.
What’s next?
There are so many complexities with employment laws, both under the federal as well as the New York State systems. If you have questions or concerns about your company and its compliance with various laws and regulations, let us know at 716.839.9700 or info@coppolalegal.com. We’ll be here to help you.
