4 surprises from the PWFA proposed regulations
On August 11, the Equal Employment Opportunity Commission (EEOC) published proposed regulations interpreting the newly enacted Pregnant Workers Fairness Act (PWFA). The law requires employers to provide reasonable accommodations to employees who are pregnant or have pregnancy-related conditions.
That basic requirement might seem similar to what employers must do under the Americans with Disabilities Act (ADA), but the PWFA regulations have some unique rules and limitations employers might find surprising.
1. The condition can be minor.
The condition (physical or mental) required to trigger an employer’s obligation to consider a reasonable accommodation does not require a specific level of severity. An employee's pregnancy, for example, doesn’t need to have complications. The limitation can be modest, minor, and/or episodic. The condition might also be related to keeping the employee’s health or the health of their pregnancy. It also includes when an employee is seeking health care related to the condition.
Employees don’t have to specify a condition or use medical terms to describe it in order to be eligible for a reasonable accommodation.
2. Many conditions are related.
The PWFA regulations provide a long, non-exhaustive list of broad pregnancy-related conditions, such as:
- The use of birth control,
- Menstruation,
- Infertility and fertility treatments,
- Having or choosing not to have an abortion,
- Carpal tunnel syndrome, and
- Migraines.
This means that employers will likely see many accommodation requests.
3. The person doesn’t have to be able to perform the job to qualify.
Employers must provide reasonable accommodations to a qualified employee (or applicant). Employees are qualified even if they cannot perform one or more essential job functions. The inability is to be “temporary,” and the employee will be able to perform the essential function(s) “in the near future.” The employer must be able to reasonably accommodate the inability.
“Temporary” means lasting for a limited time, not permanent, and may extend beyond “in the near future.”
“In the near future” is generally defined as 40 weeks. Those 40 weeks begin when the employer suspends the essential function. Therefore, the 40 weeks could extend beyond the pregnancy.
4. There are limits on asking for documentation.
Employers may not ask for documentation supporting every accommodation request, particularly when the limitation and need for reasonable accommodation are obvious and the employee attests to the need.
They may also not request documentation when the accommodation is allowing the employee to:
- Carry water and drink as needed during the workday,
- Take additional restroom breaks,
- Sit or stand, and
- Take breaks as needed to eat and drink.
Employers must provide these minor accommodations without question.
The documentation may not ask for a ton of information. It only needs to describe or confirm:
- The physical or mental condition;
- That it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and
- That the employee needs a change or adjustment at work for that reason.
Key to remember: Employers should get ready for an influx of accommodation requests by getting familiar with the PWFA requirements. Training your managers about what they can expect and what they should do can also help avoid issues and claims.
