Pregnant Workers Fairness Act “PWFA” Final Rules

As you may recall, we sent out an AHEAD Newsletter last May regarding the Pregnant Workers Fairness Act “PWFA,” which went into effect last June 27.

As a refresher, the law:

• Covers employers with 15 or more employees. Protects employees and applicants who have limitations related to pregnancy, childbirth, or related medical conditions.
• Like the ADA, employers are required to provide reasonable accommodations, absent undue hardship. However, under the PWFA, such accommodation must be granted for “physical or mental conditions” related to pregnancy, childbirth, or related medical condition,” which is a lesser standard than the required “physical or mental impairment” under the ADA.Another major distinction between the ADA and the PWFA is the definition of a “qualified individual.” Under the ADA an individual must be able to perform the essential functions of the job with or without reasonable accommodation. Additionally, eliminating an essential job function is not a reasonable accommodation. However, under the PWFA, an individual is still considered “qualified” if the inability to perform an essential function is for a temporary period, and can be reasonably accommodated.
• Specifically requires employers to engage in the interactive process with employees requesting a reasonable accommodation related to pregnancy, childbirth, or a related medical condition.
• Prohibits employers from denying an employment opportunity, or taking an adverse employment action, based on the need for a reasonable accommodation to the known limitations related to pregnancy, childbirth, or a related condition.
• Prohibits employers from requiring employees to take leave if another reasonable accommodation could be provided. So, granting leave is a last resort, unless of course the employee prefers that as the reasonable accommodation.
• Prohibits employers from retaliating against anyone who complains about a violation of the PWFA, or participates in an investigation, hearing, or proceeding related to the same. Also prohibited is coercing, threatening, intimidating, or interfering with anyone’s rights under the PWFA

Two days ago, the EEOC released its final rules (regs) regarding how it interprets and will enforce the law. The regs are over 400 pages, so set forth below is an attempt to summarize some of the important points:

• The final regs contain a very broad definition of “Pregnancy, Child Birth or Related Medical Condition,” which in addition to the normal pregnancy related conditions includes: fertility treatment; and termination of pregnancy (miscarriage or abortion).
• The definition of those deemed “Qualified” is also very broad. As with the ADA, someone is Qualified if she can perform the essential functions of the job, with or without reasonable accommodation. However, under the PWFA, someone is also qualified if the inability to perform the essential functions is TEMPORARY, and will be able to be performed IN THE NEAR FUTURE (generally 40 weeks).
• The regs include a list of possible accommodations, including: Job restructuring; Schedule changes, part-time work, and paid and unpaid leave; Frequent breaks; Acquiring or modifying equipment, uniforms, or devices; Making existing facilities accessible or modifying the work environment; Allowing sitting or standing (and providing means to do so); Light duty; Telework or remote work; Providing a reserved parking space; Temporarily suspending one or more essential function; and Adjusting or modifying workplace policies.This list is not exhaustive. The EEOC and courts may consider other accommodations to be “reasonable,” so employers will want to work with the employee during the interactive process to review these options but to also identify other possible accommodations.
• The regs attempt to clarify when an accommodation request can be denied, which is only if it would impose an Undue Hardship on business operations. Generally, an accommodation would create an Undue Hardship if it would cause significant difficulty or expense. The following factors may be considered when considering whether temporarily suspending an essential job function would be an Undue Hardship: The length of time the employee or applicant will be unable to perform the essential function; whether there is work for the employee or applicant to accomplish; the nature of the essential function, including its frequency; whether you have provided other employees or applicants in similar positions who are unable to perform essential functions with temporary suspension of those functions and other duties; whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function in question, if needed; and whether the essential function can be postponed or remain unperformed for any length of time and, if so, for how long.

The final rules (regs) will take effect 60 days after they are published in the Federal Register. The effective date is anticipated to be around June 18. However, there is a chance that their implementation may be delayed by litigation.



The bottom line is that covered employers will need to carefully consider accommodation requests by employees covered by this law, with an understanding that the accommodation responsibility is much broader than that under the ADA.