As we wrote about last week, the Equal Employment Opportunity Commission (EEOC) released its final rules implementing the Pregnant Workers Fairness Act (PWFA). The final rules provide some important definitions to understand.

Related Medical Conditions – The EEOC defines this term very broadly in the regulations. The term defines conditions related to pregnancy or childbirth of the specific employee seeking accommodation. This includes conditions such as miscarriage, stillbirth, abortion, and other complications such as lactation, menstruation, depression, and anxiety. The PWFA regulations don’t stop there and state that reproductive health conditions that do not directly associate with the actual current or recent pregnancy are also covered by the law.

Despite many comments by the public against abortion and related conditions being covered by the PWFA, the EEOC states the accommodation of an abortion does not include paying for it or any costs such as transportation and such.

Reasonable Accommodation – Though the accommodation process is similar to the Americans with Disabilities Act (ADA), the PWFA rules that a limitation that must be accommodated is any “physical or mental condition related to, affected by, or rising out of pregnancy, childbirth, or related medical conditions.” A limitation to be accommodated can be those occurring pre, during, or post pregnancy which can include fertility treatment or in the case of abortion the termination of the pregnancy. The rules differ from the ADA in that a physical or mental condition does not have to limit a major life activity.

The rules also state that the employee or applicant does not have to put their request for accommodation in writing.

More Ways the PWFA and ADA Differ

The PWFA differs from the ADA in the fact that employers will have to accommodate an employee that due to these pregnancy related conditions, is not able to perform the essential functions of the job as long as the condition is temporary. What is “temporary?” The rules state this is a condition “lasting for a limited time, not permanent, but may not extend beyond ‘in the near future.’” The regulation goes on to say that “temporary” is tied to the nature of gestation so the inability to perform an essential function may be limited to 40 weeks – a pretty significant period of time. There are other medical conditions connected to the actual term of pregnancy that could impact the women’s ability to perform the essential functions of the job. The acceptable timeframe for those will have to be determined on a case-by-case basis.

The PWFA regulations prescribe certain modifications to the job that employers should not question. They are referred to as “predictable assessments.” The EEOC added new language to that part of the rule addressing this that states “certain modifications will generally not impose an undue hardship and therefore should be granted by employer in virtually all situations.”

These are:

1.  Allowing an employee to carry or keep water near and drink as needed
2. Allowing an employee to take additional restroom breaks, as needed
3.  Allowing an employee whose work requires standing to sit and whose work requires sitting to stand as needed, and
4. Allowing and employee to take breaks and drink, as needed

 (Seyfarth Shaw Employment Law Lookout. Pregnant Workers Fairness Act: EEOC Issues Final Rule to Implement New Law Protection Pregnant Workers)

Another difference between PWFA and the ADA requirements is in the area of supporting documentation that is normally part of the accommodation process under the ADA. Under the PWFA employers may only request documentation when it is reasonable under the circumstances. The requested documentation would allow the employer to determine whether the employee has a limitation covered by the law. When the pregnancy is known or obvious, the rules suggest that the employer should not request supporting documentation.

In addition to providing some clarification of terms in the PWFA the regulation also

• • Provides numerous examples of reasonable accommodations
• • Provides guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodations
• • Provides an explanation of when an accommodation would impose an undue hardship on the employer and its business
• • Provides information on how employers may assert defenses or exemptions, including those based upon religion

For more information on the PWFA law and regulation contact the ASE Research Hotline at 248-223-8057 or [email protected].

Sources:

Seyfarth Shaw Employment Law Lookout. Pregnant Workers Fairness Act: EEOC Issues Final Rule to Implement New Law Protection Pregnant Workers (4/18/2024)

Wolters Kluwer EEOC Issues Final Rule Implementing Pregnant Workers Fairness Act – Agency Regulation (4/18/2024)