On August 7, 2023, the Equal Employment Opportunity Commission (“EEOC”) took its first steps to enact rules to implement the Pregnant Workers Fairness Act (“PWFA”) when it issued a Notice of Proposed Rulemaking, which was published on August 11 The PWFA, which went into effect on June 27, 2023, protects employees experiencing limitations relating to pregnancy, childbirth, or related medical conditions. The PWFA requires employers with fifteen or more employees to offer reasonable accommodations to covered employees absent an “undue hardship” on the employer.
Overview of the Proposed Regulations
While Congress ordered rulemaking to “provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions,” the proposed rules go far beyond that directive.
Under the proposed regulations, pregnancy and childbirth are not limited to such. Instead, they include “current pregnancy; past pregnancy; potential or intended pregnancy; labor; and childbirth.” The proposed rules also set forth a non-exhaustive list of medical conditions that would be covered if related to an individual’s pregnancy or childbirth. This list includes many expected conditions, including preeclampsia, sciatica, incontinence, and miscarriage, but the list also includes some unexpected conditions, including infertility, endometriosis, menstrual cycles, and birth control use. The EEOC makes clear that the physical and mental conditions can be “modest, minor, and/or episodic” and do not need to rise to a specific severity threshold.
Examples of Reasonable Accommodations
While the PWFA incorporates the Americans with Disabilities Act’s (“ADA”) definition of reasonable accommodations, the proposed regulations do not mirror the ADA’s regulations. Instead, the proposed regulations set forth a list of potential accommodations that may, under the correct circumstances, be reasonable, including:
- Modifying work schedules;
- Providing additional breaks;
- Modifying equipment or uniforms;
- Providing seating for jobs that require standing or standing for jobs that require sitting;
- Providing devices to assist with lifting and carrying objects for jobs;
- Making existing facilities accessible or modifying the work environment;
- Light duty or modified duty;
- Take leave or time off; and/or
- Reserved parking.
The list outlined in the proposed regulations is not identical to the ADA’s list of reasonable accommodations but is consistent with accommodations required for pregnant employees under other state and federal laws. The proposed rules also set forth many of scenarios evaluating whether and what accommodation(s) would be reasonable.
But there is one accommodation that employers were never required to consider under the ADA: removing or relocating an employee’s essential job functions. Pursuant to the PWFA, employers are required to consider such an accommodation for a temporary period if the employee is expected to perform the essential function “in the near future” and the inability to perform the essential function can be reasonably accommodated.
In making such a significant change to the law, Congress did not define “temporary” or “in the near future.” And unfortunately, the proposed regulations leave much to be desired in terms of clarity, defining “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future,’” and defining “in the near future” as “generally forty weeks from the start of the temporary suspension of an essential function.” Therefore, under the PWFA, an employer may need to reallocate an employee’s essential job functions or move the employee to a different assignment or a light-duty program for forty weeks or more unless doing so would cause an undue hardship to the company.
In many respects, the interactive process outlined in the proposed regulations is similar to the interactive process required by the ADA. The process begins with a written or verbal request for an accommodation. The request need not use any specific language or key words, but once an employer is on notice that an employee is requesting an accommodation related to pregnancy, childbirth, or a related medical condition, the employer must engage in the interactive process to evaluate whether the employee is covered, evaluate the accommodation request, identify other accommodations, if appropriate, and determine whether providing accommodations would be an undue hardship.
Similar to the ADA process, the employer can request additional documentation to support the employee’s request, provided such documentation reasonably relates to the employee’s physical and mental condition. But unlike the ADA process, the proposed regulations prohibit the employer from requiring the employee to go to a healthcare professional of the employer’s choosing, even if there is a question regarding the employee’s physical or mental condition or the need for an accommodation.
Similar to the ADA process, when reviewing an employee’s accommodation request, an employer can only deny a request if it is unreasonable or creates an undue hardship for an employer. Even if a request is unreasonable, the employer must still participate in the interactive process. To determine whether a reasonable request creates an undue hardship, consistent with the ADA’s rules, an employer may consider the cost of the accommodation, the financial resources of the employer, and the employer’s type of operations.
When considering a request to remove an employee’s essential job functions temporarily, the proposed rules permit employers to consider additional factors to determine whether providing such an accommodation would create an undue hardship, including:
- The length of time the employee cannot perform the essential function;
- Whether there is different work for the employee to perform;
- Whether the employer has already provided other employees in similar positions with a temporary suspension of essential functions;
- If there are other employees, temporary employees, or third parties who can perform or be hired to perform the employee’s essential function; and
- If the essential function can be postponed or remain unperformed for any length of time.
Notwithstanding the normal balancing that is permitted in the interactive process, the proposed regulations state that the following accommodations will always be reasonable and cannot, as a matter of law, create an undue hardship:
- Allowing an employee to carry water and drink, as needed, in the employee’s work area;
- Allowing an employee to take additional restroom breaks;
- Allowing an employee whose work requires standing to sit and vice versa;
- Allowing an employee to take breaks, as needed, to eat and drink.
What Do the Proposed Rules Mean for New Jersey Employers?
New Jersey employers have been used to specific accommodation requirements for pregnant and breastfeeding employees under the New Jersey Pregnant Workers Fairness Act (“NJPWFA”). And while many of the PWFA’s requirements are like those under the NJPWFA, there are some new requirements. The most dramatic is the expectation for employers to not only provide reasonable accommodations but also change the essential functions of employees’ positions if other accommodations would not address the employees’ needs. This added requirement could significantly impact an employer’s business operations, especially if the employer is not accustomed to changing employees’ job functions.
As with any proposed rules, these are just that: proposed. Unless and until the rules are adopted, additional changes may be made following a comment period. But these proposed regulations certainly provide insight into how the PWFA may be interpreted, especially by the EEOC, and employers should be mindful about responding to accommodation requests related to pregnancy, childbirth, or related medical conditions. Experienced legal counsel can assist in helping impacted employers navigate the impact of this monumental legislation and these proposed regulations.
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