May 14th Tip of the Week
“EEOC Issues Final Rules on Pregnant Workers Fairness Act“
On April 19, 2024, the Equal Employment Opportunity Commission (the “EEOC”) issued its final rule implementing the Pregnant Workers Fairness Act (the “PWFA”). The regulations contained in this final rule go into effect 60 days from April 19, 2024. In an effort to assist employers in understanding the final rule and how it impacts an employer’s obligation to pregnant workers, the EEOC issued a summary of the key provisions of that rule. That summary can be found here: https://www.eeoc.gov/summary-key-provisions-eeocs-final-rule-implement-pregnant-workers-fairness-act-pwfa#:~:text=The%20PWFA%20requires%20a%20covered,business%20of%20the%20covered%20entity.
The summary includes information such as who is covered by the rule, a description of the remedies and enforcement efforts available under the rule, definitions of important terms used in the law, and examples of reasonable accommodations. The summary notes that the concept of reasonable accommodation in the PWFA is similar to the Americans with Disabilities Act and states that a reasonable accommodation “[g]enerally … means a change in the work environment or how things are usually done.”
The summary draws a distinction from the ADA, however, when it comes to the definition of qualified. Typically, under the ADA, an individual is a qualified individual if they are able to perform the essential functions of a job with or without a reasonable accommodation. Under the PWFA, the EEOC has determined that, because pregnancy is viewed to be a temporary condition, an employee is considered to be qualified if they can perform the essential functions of the job “in the near future” and the inability to perform the essential functions of the position can be reasonably accommodated. Such accommodation may include removing the essential functions of the job temporarily and allowing the employee to continue to perform those essential functions that they are able to perform while pregnant. An employer may assign additional tasks to a pregnant employee that they are able to perform for the duration of their temporary disability. The removal of an essential function of the job for a pregnant employee represents a departure from the application of the ADA, which does not require employers to fundamentally change a job or remove essential functions of a position for a disabled employee.
Both the ADA and the PWFA require the employer and the employee to engage in an interactive process when identifying the employee’s limitations and the adjustments needed to reasonably accommodate the employee. The final rule provides specific guidance on how this process should unfold. First, an employer is not required to seek supporting documentation from the pregnant employee regarding their limitations; if the employer does seek such documentation, they must be able to show that the documentation is reasonably necessary to determine whether the employee’s ability to perform their job is affected by their pregnancy and needs an accommodation. When documentation is sought by the employer, it must be limited to confirming the physical or mental condition and that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The documentation must also include a description of the change or adjustment at work needed as a result of the limitation.
In addition to describing the interactive process as a two-way communication to arrive at a reasonable accommodation, the final rule lists several prohibitions related to reasonable accommodations for pregnant employees. First, an employer cannot engage in an unnecessary delay in making a reasonable accommodation. Second, an employee cannot be required to accept an accommodation; although if the employee rejects the offered accommodation which will allow them to be “qualified” under the Act, the employee will not be considered qualified and will not be entitled to the protection of the Act. When requesting supporting documentation, the employer must provide reasonable time to the employee to obtain and provide the documentation and cannot use the failure to provide such documentation as a valid reason for delaying or denying a reasonable accommodation. Under the final rule, leave, paid or unpaid, is not considered a reasonable accommodation if another effective reasonable accommodation exists absent undue hardship.
The issuance of this final rule is helpful to employers who have had questions regarding their obligations under the Pregnant Workers Fairness Act. It is also an interesting contrast between that law and the Americans with Disabilities Act. In comparing the EEOC’s approach to enforcing both laws, there is a difference that appears to be related to the temporary nature of pregnancy. Employers who are faced with requests for accommodations for both pregnant and disabled employees would be well served in reviewing this rule. myHRcounsel can assist you in understanding your obligations under both laws and navigating what can be difficult HR situations.