Legislative Update

The U.S. Equal Employment Opportunity Commission (EEOC) is scheduled to publish its final rule and guidance for implementing the Pregnant Workers Fairness Act (PWFA) on Friday, April 19.

The PWFA guarantees pregnant workers access to reasonable accommodations related to pregnancy, childbirth, or related medical issues unless doing so would impose undue hardship on business operations. Modeled after the Americans with Disabilities Act (ADA), the PWFA provides a similar “reasonable accommodation” request process; applies to employers with 15 or more employees; and uses terms like “undue hardship” and “essential functions.”

SHRM submitted a formal comment during the rulemaking process to help ensure PWFA implementation would be smooth for HR professionals. The final rule offers definitions, examples of reasonable accommodations, specific prohibitions, how PWFA interacts with other federal workplace laws and real-world scenarios to enhance the understandability of how employers should implement the law.

Key concepts and definitions from the final rule include:

• How does the PWFA differ from the ADA? Both laws ask if there are reasonable accommodations that would allow the qualified worker (current employees and applicants) to do the essential functions of the position without imposing “undue hardship” on the employer. Whether a particular accommodation will impose an undue hardship for an employer is determined on a case-by-case basis.

The first key difference is that qualified workers can utilize the protections of the PWFA by virtue of their pregnancy alone; there is no severity threshold. Because this is a lower standard than the ADA, some of the medical certification requirements are not as rigid. Second, the PWFA sets up a situation where an employer might temporarily suspend an “essential function” for an employee as a reasonable accommodation, as long as the employee’s inability to do that task is “temporary” and can be performed “in the near future.” According to the new rule, the employer’s temporary suspension of a job function(s) does not bar the employer from contending that the function(s) is essential for other accommodation requests in the future. 

• What are some examples of reasonable accommodations? Section 1636.3 (i) lists a series of non-exhaustive examples of “reasonable accommodations” for purposes of the PWFA. Listed among them are making existing facilities used by employees readily accessible to and usable by employees with known limitations under the PWFA; job restructuring; part-time or modified work schedules; reassignment to a vacant position; restroom breaks; telework or remote work; leave; and temporary suspension of one or more of the position’s essential functions.
  
  The EEOC has listed four instances that are, in virtually all cases, “reasonable accommodations” that will not impose an undue hardship. These “predictable assessments” include:
  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 an employee to take breaks to eat and drink, as needed.
• How does a worker request a “reasonable accommodation”? The qualified worker must first “communicate to the employer” their known limitation, which means making “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,…human resources personnel, or another appropriate official, or by following the steps in the covered entity’s policy to request an accommodation.” This does not have to be in writing nor does the worker need to use any specific wording or medical terms.
• What is “reasonable documentation” and what are the employer’s limitations on requesting it? Like the ADA, the initial request by the worker may trigger the employer to initiate an informal, interactive process to determine the “appropriate reasonable accommodation.” This may include the employer seeking supporting documentation (although it is not required) when it is “reasonable under the circumstances.” Under the final rule, reasonable documentation means “the minimum that is sufficient” to 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 an adjustment or change at work is needed.
  
  It is not considered “reasonable” to request documentation when the known limitation and the adjustment or change at work needed due to the limitation(s) are “obvious” and the employee provides self-confirmation; when the employer already has sufficient information to make the determination; when the qualified worker has provided a self-confirmation and seeks an accommodation listed under a “predictable assessment;” when the accommodation is related to a time or place to pump at work or other matters related to nursing during working hours; and when the requested accommodation is available to other employees per the organization’s policies and practices.

As the PWFA is implemented, SHRM will ensure our members are well-equipped to follow the law and applicable EEOC regulations. As a member of SHRM's Advocacy Team (A-Team), stay tuned for more updates on this critical workplace issue.

Sincerely,
SHRM Government Affairs

January, 2024

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