['Discrimination']
['Discrimination', 'Pregnancy Discrimination']
08/12/2024
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
...
[Editor’s Note: This section is added effective June 18, 2024.]
(a) Known limitation. Known limitation means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee's representative has communicated to the covered entity, whether or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act of 1990, 42 U.S.C. 12102.
(1) Known, in terms of limitation, means the employee or the employee's representative has communicated the limitation to the employer.
(2) Limitation means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, of the specific employee in question. “Physical or mental condition” is an impediment or problem that may be modest, minor, and/or episodic. The physical or mental condition may be that an employee affected by pregnancy, childbirth, or related medical conditions has a need or a problem related to maintaining their health or the health of the pregnancy. The definition also includes when an employee is seeking health care related to pregnancy, childbirth, or a related medical condition itself. The physical or mental condition can be a limitation whether or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act of 1990, 42 U.S.C. 12102.
(b) Pregnancy, childbirth, or related medical conditions. “Pregnancy” and “childbirth” refer to the pregnancy or childbirth of the specific employee in question and include, but are not limited to, current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including vaginal and cesarean delivery). “Related medical conditions” are medical conditions relating to the pregnancy or childbirth of the specific employee in question. The following are examples of conditions that are, or may be, “related medical conditions”: termination of pregnancy, including via miscarriage, stillbirth, or abortion; ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal (during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstruation; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections. This list is non-exhaustive.
(c) Employee's representative. Employee's representative means a family member, friend, union representative, health care provider, or other representative of the employee.
(d) Communicated to the employer. Communicated to the employer, with respect to a known limitation, means an employee or the employee's representative has made the employer aware of the limitation by communicating with a supervisor, a manager, someone who has supervisory authority for the employee or who regularly directs the employee's tasks (or the equivalent for an applicant), human resources personnel, or another appropriate official, or by following the steps in the covered entity's policy to request an accommodation.
(1) The communication may be made orally, in writing, or by another effective means.
(2) The communication need not be in writing, be in a specific format, use specific words, or be on a specific form in order for it to be considered “communicated to the employer.”
(e) Consideration of mitigating measures.(1) The determination of whether an employee has a limitation shall be made without regard to the ameliorative effects of mitigating measures.
(2) The non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an employee has a limitation.
(f) Qualified employee. Qualified employee with respect to an employee with a known limitation under the PWFA means:
(1) An employee who, with or without reasonable accommodation, can perform the essential functions of the employment position. With respect to leave as an accommodation, the relevant inquiry is whether the employee is reasonably expected to be able to perform the essential functions, with or without a reasonable accommodation, at the end of the leave, if time off is granted, or if the employee is qualified as set out in paragraph (f)(2) of this section after returning from leave.
(2) Additionally, an employee shall be considered qualified if they cannot perform one or more essential functions if:
(i) Any inability to perform an essential function(s) is for a temporary period, where “temporary” means lasting for a limited time, not permanent, and may extend beyond “in the near future”;
(ii) The essential function(s) could be performed in the near future. This determination is made on a case-by-case basis. If the employee is pregnant, it is presumed that the employee could perform the essential function(s) in the near future because they could perform the essential function(s) within generally 40 weeks of its suspension; and
(iii) The inability to perform the essential function(s) can be reasonably accommodated. This may be accomplished by temporary suspension of the essential function(s) and the employee performing the remaining functions of their position or, depending on the position, other arrangements, including, but not limited to: the employee performing the remaining functions of their position and other functions assigned by the covered entity; the employee performing the functions of a different job to which the covered entity temporarily transfers or assigns the employee; or the employee being assigned to light duty or modified duty or participating in the covered entity's light or modified duty program.
(g) Essential functions. Essential functions mean the fundamental job duties of the employment position the employee with a known limitation under the PWFA holds or desires. The term “essential functions” does not include the marginal functions of the position.
(1) A job function may be considered essential for any of several reasons, including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for their expertise or ability to perform the particular function.
(2) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time that would be spent on the job performing the function during the time the requested accommodation will be in effect;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(h) Reasonable accommodation—generally.(1) With respect to an employee or applicant with a known limitation under the PWFA, reasonable accommodation includes:
(i) Modifications or adjustments to a job application process that enable a qualified applicant with a known limitation under the PWFA to be considered for the position such qualified applicant desires;
(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified employee with a known limitation under the PWFA to perform the essential functions of that position;
(iii) Modifications or adjustments that enable a covered entity's employee with a known limitation under the PWFA to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without known limitations; or
(iv) Temporary suspension of essential function(s) and/or modifications or adjustments that permit the temporary suspension of essential function(s).
(2) To request a reasonable accommodation, the employee or the employee's representative need only communicate to the covered entity that the employee needs an adjustment or change at work due to their limitation (a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions).
(i) The communication may be made to any of the individuals in paragraph (d) of this section. The provisions of paragraphs (d)(1) and (2) of this section, which define what it means to communicate a limitation to a covered entity, apply to communications under this paragraph (h)(2).
(ii) An employee's request does not have to identify a medical condition, whether from paragraph (b) of this section or otherwise, or use medical terms.
(3) To determine the appropriate reasonable accommodation, it may be necessary for the covered entity to initiate an informal, interactive process as explained in paragraph (k) of this section.
(i) Reasonable accommodation—examples. Reasonable accommodation may include, but is not limited to:
(1) Making existing facilities used by employees readily accessible to and usable by employees with known limitations under the PWFA;
(2) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; breaks for use of the restroom, drinking, eating, and/or resting; acquisition or modification of equipment, uniforms, or devices, including devices that assist with lifting or carrying for jobs that involve lifting or carrying; modifying the work environment; providing seating for jobs that require standing, or allowing standing for jobs that require sitting; appropriate adjustment or modifications of examinations or policies; permitting the use of paid leave (whether accrued, as part of a short-term disability program, or any other employer benefit) or providing unpaid leave for reasons including, but not limited to, recovery from childbirth, miscarriage, stillbirth, or medical conditions related to pregnancy or childbirth, or to attend health care appointments or receive health care treatment related to pregnancy, childbirth, or related medical conditions; placement in the covered entity's light or modified duty program or assignment to light duty or modified work; telework, remote work, or change of work site; adjustments to allow an employee to work without increased pain or increased risk to the employee's health or the health of the pregnancy; temporarily suspending one or more essential functions of the position; providing a reserved parking space if the employee is otherwise entitled to use employer-provided parking; and other similar accommodations for employees with known limitations under the PWFA.
(3) The reasonable accommodation of leave includes, but is not limited to, the examples in paragraphs (i)(3)(i) through (iii) of this section.
(i) The ability to use paid leave (whether accrued, short-term disability, or another employer benefit) or unpaid leave, including, but not limited to, leave during pregnancy; to recover from childbirth, miscarriage, stillbirth, or other related medical conditions; and to attend health care appointments or receive health care treatments related to pregnancy, childbirth, or related medical conditions;
(ii) The ability to use paid leave (whether accrued, short-term disability, or another employer benefit) or unpaid leave for a known limitation under the PWFA; and
(iii) The ability to choose whether to use paid leave (whether accrued, short-term disability or another employer benefit) or unpaid leave to the extent that the covered entity allows employees using leave for reasons not related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions to choose between the use of paid leave and unpaid leave.
(4) Reasonable accommodation related to lactation includes, but is not limited to:
(i) Breaks, a space for lactation, and other related modifications as required under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) (Pub. L. 117-328, Div. KK, 136 Stat. 4459, 6093 (2022)), if not otherwise provided under the PUMP Act;
(ii) Accommodations related to pumping, such as, but not limited to, ensuring that the area for lactation is in reasonable proximity to the employee's usual work area; that it is a place other than a bathroom; that it is shielded from view and free from intrusion; that it is regularly cleaned; that it has electricity, appropriate seating, and a surface sufficient to place a breast pump; and that it is in reasonable proximity to a sink, running water, and a refrigerator for storing milk;
(iii) Accommodations related to nursing during work hours (where the regular location of the employee's workplace makes nursing during work hours a possibility because the child is in close proximity); and
(iv) Other reasonable accommodations, including those listed in paragraphs (i)(1) through (3) of this section.
(5) The temporary suspension of one or more essential functions of the position in question, as defined in paragraph (g) of this section, is a reasonable accommodation if an employee with a known limitation under the PWFA is unable to perform one or more essential functions with or without a reasonable accommodation and the conditions set forth in paragraph (f)(2) of this section are met.
(j) Undue hardship— (1) In general. Undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a covered entity, when considered in light of the factors set forth in paragraph (j)(2) of this section.
(2) Factors to be considered. In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered, with no one factor to be dispositive, include:
(i) The nature and net cost of the accommodation needed under the PWFA;
(ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
(iii) The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities;
(iv) The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
(v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.
(3) Temporary suspension of an essential function(s). If an employee with a known limitation under the PWFA meets the definition of “qualified employee” under paragraph (f)(2) of this section and needs one or more essential functions of the relevant position to be temporarily suspended, the covered entity must provide the accommodation unless doing so would impose an undue hardship on the covered entity when considered in light of the factors provided in paragraphs (j)(2)(i) through (v) of this section as well as the following additional factors where they are relevant and with no one factor to be dispositive:
(i) The length of time that the employee will be unable to perform the essential function(s);
(ii) Whether, through the factors listed in paragraph (f)(2)(iii) of this section or otherwise, there is work for the employee to accomplish;
(iii) The nature of the essential function(s), including its frequency;
(iv) Whether the covered entity has provided other employees in similar positions who are unable to perform the essential function(s) of their position with temporary suspensions of the essential function(s);
(v) If necessary, whether there are other employees, temporary employees, or third parties who can perform or be hired to perform the essential function(s); and
(vi) Whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.
(4) Predictable assessments. The individualized assessment of whether a modification listed in paragraphs (j)(4)(i) through (iv) of this section is a reasonable accommodation that would cause undue hardship will, in virtually all cases, result in a determination that the four modifications are reasonable accommodations that will not impose an undue hardship under the PWFA when they are requested as workplace accommodations by an employee who is pregnant. Therefore, with respect to these modifications, the individualized assessment should be particularly simple and straightforward:
(i) Allowing an employee to carry or keep water near and drink, as needed;
(ii) Allowing an employee to take additional restroom breaks, as needed;
(iii) Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
(iv) Allowing an employee to take breaks to eat and drink, as needed.
(k) Interactive process. Interactive process means an informal, interactive process between the covered entity and the employee seeking an accommodation under the PWFA. This process should identify the known limitation under the PWFA and the adjustment or change at work that is needed due to the limitation, if either of these is not clear from the request, and potential reasonable accommodations. There are no rigid steps that must be followed.
(l) Limits on supporting documentation.(1) A covered entity is not required to seek supporting documentation. A covered entity may seek supporting documentation from an employee who requests an accommodation under the PWFA only when it is reasonable under the circumstances for the covered entity to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an adjustment or change at work due to the limitation. The following situations are examples of when it is not reasonable under the circumstances to seek supporting documentation:
(i) When the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation), and the adjustment or change at work needed due to the limitation are obvious and the employee provides self-confirmation as defined in paragraph (l)(4) of this section;
(ii) When the employer already has sufficient information to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an adjustment or change at work due to the limitation;
(iii) When the employee is pregnant and seeks one of the modifications listed in paragraphs (j)(4)(i) through (iv) of this section due to a physical or mental condition related to, affected by, or arising out of pregnancy (a limitation) and the employee provides self-confirmation as defined in paragraph (l)(4) of this section;
(iv) When the reasonable accommodation is related to a time and/or place to pump at work, other modifications related to pumping at work, or a time to nurse during work hours (where the regular location of the employee's workplace makes nursing during work hours a possibility because the child is in close proximity), and the employee provides self-confirmation, as defined in paragraph (l)(4) of this section; or
(v) When the requested accommodation is available to employees without known limitations under the PWFA pursuant to a covered entity's policies or practices without submitting supporting documentation.
(2) When it is reasonable under the circumstances, based on paragraph (l)(1) of this section, to seek supporting documentation, the covered entity is limited to seeking reasonable documentation.
(i) Reasonable documentation means the minimum that is sufficient to:
(A) Confirm the physical or mental condition (i.e., an impediment or problem that may be modest, minor, and/or episodic; a need or a problem related to maintaining the employee's health or the health of the pregnancy; or an employee seeking health care related to pregnancy, childbirth, or a related medical condition itself) whether or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act of 1990, 42 U.S.C. 12102;
(B) Confirm that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with paragraph (l)(2)(i)(A) of this section, “a limitation”); and
(C) Describe the adjustment or change at work that is needed due to the limitation.
(ii) Covered entities may not require that supporting documentation be submitted on a specific form.
(3) When it is reasonable under the circumstances, based on paragraph (l)(1) of this section, to seek supporting documentation, a covered entity may require that the reasonable documentation comes from a health care provider, which may include, but is not limited to: doctors, midwives, nurses, nurse practitioners, physical therapists, lactation consultants, doulas, occupational therapists, vocational rehabilitation specialists, therapists, industrial hygienists, licensed mental health professionals, psychologists, or psychiatrists. The health care provider may be a telehealth provider. The covered entity may not require that the health care provider submitting documentation be the provider treating the condition at issue. The covered entity may not require that the employee seeking the accommodation be examined by a health care provider selected by the covered entity.
(4) Self-confirmation means a simple statement where the employee confirms, for purposes of paragraph (l)(1)(i), (iii), or (iv) of this section, the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation), and the adjustment or change at work needed due to the limitation. The statement can be made in any manner and can be made as part of the request for reasonable accommodation under paragraph (h)(2) of this section. A covered entity may not require that the statement be in a specific format, use specific words, or be on a specific form.
[89 FR 29182, April 19, 2024]
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['Discrimination']
['Discrimination', 'Pregnancy Discrimination']
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.