To remain on track with its responsibility to publish a final rule within a year after the passage of the Pregnant Workers Fairness Act (PWFA), the Equal Employment Opportunity Commission (EEOC) has published a proposed rule concerning the PWFA’s implementation.
In certain aspects, the proposed rule (which can be found here) builds upon the Americans with Disabilities Act (ADA) principles. For instance, the EEOC lays out in its commentary that the PWFA borrows the definition of “reasonable accommodation” and “undue hardship” from the ADA and uses the same interactive process as commonly used under the ADA as well. Yet, there are other instances where the EEOC goes farther.
For example, when it comes to “reasonable accommodation”, the EEOC provides five additions where reasonable accommodation would apply in the PWFA context – namely:
- that one does not need to be disabled but rather merely have a “known limitation related to or arising from a pregnancy” to be entitled to a reasonable accommodation. [This can include conditions that may be “modest, minor and/or episodic” and further includes current pregnancy, past pregnancy, potential pregnancy, lactation, use of birth control, menstruation, infertility, and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion.]
- that a temporary suspension of one or more essential functions is a potential reasonable accommodation provided they could do those essential functions “in the near future” (which the proposed rule defines as “generally within forty weeks”).
- that there are various examples (such as flexible scheduling, more frequent breaks, providing seating (where jobs that require standing), schedule changes, modifying the work environment, acquiring, or modifying equipment/uniforms or devices, telework, light duty, job restructuring, reserved parking) that would typically constitute reasonable accommodations under the PFWA.
- that paid leave (whether accrued, short-term disability or by way of another employer benefit) and/or unpaid leave to recover from childbirth may be a reasonable accommodation.
- that the principles of reasonable accommodation further extend to the need for lactation.
While the ADA requires employers to conduct an “individualized assessment” when engaging in the interactive process of evaluating accommodation requests, the PFWA elevates four instances that would “predictively” be considered reasonable in virtually all cases. These are requests by an employee:
- to carry water and drink, as needed, in the employee’s work area.
- to take additional restroom breaks.
- Allowing an employee whose work requires standing to sit and vice versa.
- to take breaks, as needed, to eat and drink.
In responding to reasonable accommodation requests, the rule also states that an employer cannot “unnecessarily delay” responding to a reasonable accommodation request as that may result in a violation of the PFWA. On this point, an employer cannot justify a denial or delay of a reasonable accommodation request based on an employee or applicant failing to provide supporting documentation, unless requiring the supporting documentation is “reasonable under the circumstances” for the covered entity to determine whether to provide the accommodation. While “reasonable under the circumstances” is not exhaustively defined (and therefore would be a case-by-case determination), the proposed rule does set forth four instances where it would not be permissible:
- when both the limitation and the need for reasonable accommodation are obvious.
- when the employee or applicant has already provided sufficient information.
- when an employee states or confirms they are pregnant and requests one of the four predictive/presumptive accommodations (carrying water and drinking as needed, taking additional restroom breaks, sitting, or standing, and breaks, as needed, to eat and drink), and
- when the limitation is lactation or pumping.
For employers operating in states that have state pregnancy accommodation laws (such as Connecticut, Massachusetts, and Rhode Island), the PFWA does not override those requirements. Thus, while the federal PFWA empowered the EEOC to update its EEO poster to include PFWA rights, such federal notice is separate and in addition to any employer notice requirements that an employer may otherwise face under their existing state law.
Conversely, while many of these state laws do not carry expansive regulatory guidance on their implementation, one does have to wonder if the federal PFWA regulations (once finalized) may serve as a potential blueprint for state agencies and state courts to consider when they are confronted with pregnancy accommodation cases that arise under state law. Therefore, employers that have been accustomed to providing accommodation all along still need to keep a watchful eye on this regulatory activity.
Comments are being received until October 10, 2023, via regulations.gov. As of the writing of this article, there have been over 7,500 comments submitted!
We’ll keep you posted on further developments.