Final EEOC Pregnant Workers Fairness Act Regulations

What To Expect When You’re Expecting……..

……the Final EEOC Pregnant Workers Fairness Act Regulations 

At the end of last year, President Biden signed the Consolidated Appropriations Act for 2023, which included new legal protections for pregnant and nursing workers, aptly named the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP” Act) and the Pregnant Workers Fairness Act (“PWFA”).

While many employers are aware of these new laws, they also have been left wondering what precisely their obligations are under the PWFA (the PUMP Act is more straightforward and is discussed below). On August 11, 2023, the Equal Employment Opportunity Commission (“EEOC”) published its long-awaited proposed regulations to implement the PWFA, which went into effect on June 27. In light of the fact that the EEOC has begun accepting charges under the PWFA, it is wise for employers to review the proposed regulations in order to better understand their obligations under the PWFA and how the EEOC may be interpreting and enforcing it.

PWFA

Pregnancy and its most common symptoms are generally not considered “disabilities” under the Americans with Disabilities Act (“ADA”) in the absence of significant medical complications. Accordingly, the requirement that employers provide reasonable accommodations under the ADA typically does not apply to pregnant employees. Thus, the enactment of the PWFA.

The PWFA requires employers to provide reasonable accommodations, absent undue hardship, to those “with a known limitation” related to or arising out of pregnancy, childbirth, and related medical conditions. The PWFA is similar to the ADA in many respects – the definition of “reasonable accommodation” is the same, and the “interactive process” that applies to ADA discussions applies to the PWFA as well. However, one major difference is that, unlike the ADA, the PWFA protects those who are temporarily unable to perform an essential job function due to pregnancy, childbirth, or a related condition. If such a worker is not able to perform the essential functions of her job, the employer must excuse that function if the inability is temporary, such that the employee will be able to perform the function “in the near future,” and there is no accommodation that will enable the employee to perform that function.  For example, if an employee cannot lift 50 pounds because she is in the latter stages of pregnancy, and that is an essential function of her job, the employer must work around that inability, since it is only temporary, unless the workaround would cause an undue hardship. In contrast, under the ADA, an employer is not required to eliminate such essential job functions.

The EEOC’s recently proposed regulations includes a list of examples of “pregnancy, childbirth, or related medical conditions” that generally fall within the PWFA’s purview, including current, past, and potential pregnancy; lactation; the use of birth control; menstruation; infertility and fertility treatments; and miscarriages. Importantly, the physical or mental condition leading a worker to seek an accommodation can be a modest, minor, and/or an episodic problem or impediment–there is no threshold of severity required under the PWFA. This is to ensure that employees and applicants, including those with uncomplicated pregnancies, have access to accommodations and for them to be able to maintain their health or the health of their pregnancies.

Some examples of possible reasonable accommodations under the PWFA include allowing a worker to:

• Sit while working.
• Drink water during the workday.
• Receive closer parking.
• Have flexible hours.
• Receive appropriately sized uniforms and safety apparel.
• Receive additional break time to use the bathroom, eat, and rest.
• Take time off to recover from childbirth.
• Be excused from strenuous activities and/or exposure to chemicals not safe for pregnancy.

Employers cannot require an employee to accept an accommodation without a prior discussion, deny a qualified employee a job because of the need for accommodation, require an employee to take leave (paid or unpaid) if another reasonable accommodation is available, or retaliate against anyone for reporting discrimination under the PWFA or participating in a PWFA investigation.

“Predictable Assessments” 

The overarching goal of the PWFA is to assist workers affected by pregnancy and related medical conditions to remain on the job by providing them with simple accommodations quickly. As such, the EEOC has described a number of “predictable assessments”, or reasonable accommodations that will not impose an undue hardship “in virtually all cases.” These include (1) allowing an employee to carry water and drink, as needed, in their work area, (2) allowing an employee additional restroom breaks, (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, and (4) allowing an employee breaks, as needed, to eat and drink.

Documentation

Employers are accustomed to requiring documentation in various circumstances and many had been wondering what kind of documentation—if any—they could request from a worker seeking an accommodation under the PWFA. The EEOC has acknowledged that employers may ask for documentation in certain circumstances under the PWFA; however, in an attempt to limit the documentation that employers may require, the EEOC proposes defining “reasonable documentation” as that which: (1) describes or confirms the physical or mental condition; (2) confirms that it is related to, affected by, or arises out of pregnancy, childbirth or related medical conditions; and (3) confirms that a change or adjustment is needed for that reason. The proposed rule also lists the following scenarios in which requesting documentation is not reasonable:

1. When both the limitation and the need for reasonable accommodation are obvious. For example, when an obviously pregnant worker states they are pregnant and asks for a different size uniform or safety gear, both the limitation and the need for the accommodation are obvious and “known” under the statute.
2. When the employee or applicant has already provided the employer with sufficient information to substantiate that the worker has a known limitation and needs a change or adjustment at work.
3. When a worker at any time during their pregnancy states that they are pregnant and seeks one of aforementioned “predictable assessments” as a reasonable accommodation.
4. When pumping or lactation is involved. The EEOC notes that health care providers may not be able to provide documentation regarding whether a worker is pumping, nor the types of accommodations needed in order to pump breast milk. The EEOC also noted that not all workers can or choose to breastfeed; those who do elect to breastfeed do so for widely varying lengths of time.

PUMP Act

The Fair Labor Standards Act (“FLSA”) requires employers to provide nonexempt employees with reasonable break time to express breast milk for up to one year after a child’s birth. The PUMP Act—which amends the FLSA—expands these requirements, affording break time and a private space to express breast milk to all nursing employees (previously, only nonexempt employees were provided this protection).  It is important to remember that non-exempt employees must be paid for these breaks if they are not “completely relieved for duty”. So, if a nursing mother answers phone calls or responds to emails while she is pumping, she must be paid for that time. Exempt employees should be paid their full weekly salary as required by federal and Ohio law, regardless of whether they take breaks to express breast milk.

Next Steps for Employers

Now that these PWFA regulations have been published, the public has 60 days to submit comments by going to http://www.regulations.gov. As mentioned above, these regulations are not finalized but do provide beneficial insight as to what employers might be required to do in order to comply with the PWFA. The EEOC has until December 29^th to issue final regulations.

In the meantime, there are certain actions that employers should take now in order to comply with both the PWFA and PUMP Act:

• Display the updated EEOC “Know Your Rights” Poster, which is available on the EEOC website.
• Ensure you are complying with the PUMP Act by allowing nursing mothers reasonable break time to express breast milk (and a private location in which to do so).
• In accordance with the PWFA, provide “reasonable accommodations” for an employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship.

If you have any questions about your obligations under the PWFA or PUMP Act, or if you would like help developing a PWFA Accommodation Policy, please contact one of the Labor and Employment Law attorneys at FGKS Law.