New PWFA Regulations

The Equal Employment Opportunity Commission (EEOC) recently issued new regulations implementing the Pregnant Workers Fairness Act (PWFA). As reported in our April 27, 2023 edition of School Law Notes, the PWFA became effective on June 27, 2023 and renders the following pregnancy-related conduct by employers (including schools) with at least 15 employees unlawful:

• Failing to make reasonable accommodation for qualified employees with a known limitation related to pregnancy, childbirth, or related medical condition absent an undue hardship;
• Requiring a qualified employee to accept a PWFA accommodation other than any reasonable accommodation arrived at through an “interactive process;”
• Denying employment opportunities to a qualified employee based on the need to make PWFA reasonable accommodations;
• Requiring a qualified employee to take leave if another PWFA reasonable accommodation can be provided; and
• Taking adverse action in term, condition, or privilege of employment because the qualified employee requested or used a PWFA reasonable accommodation.

The regulations are the EEOC’s interpretation of the PWFA, which have the force of law and are effective June 18, 2024. Preliminary questions about the regulations are addressed below.

Overview

1. What is a “known limitation”?

PWFA regulations state that a known limitation is a physical or mental condition related to, affected by, or arising from pregnancy, childbirth, or a related medical condition that the employee or the employee’s representative has communicated to the employer. The condition may be modest, minor, or episodic. The phrase also includes an employee seeking healthcare related to pregnancy, childbirth, or a related medical condition.

2. Who is an “employee representative”?

The phrase means “a family member, friend, union representative, health care provider, or other representative of the employee.”

3. What constitutes sufficient communication by an employee or the employee representative to trigger the PWFA?

The employee or representative must make 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 an employer policy to request an accommodation. The communication may be oral or written and does not need to use specific words.

4. Does an employee representative need authorization from the employee to request an accommodation on the employee’s behalf?

It depends. The Appendix to the PWFA regulations states that “[i]n most circumstances, the [EEOC] expects that the representative will have the employee’s permission before communicating the limitation to the [employer], but there may be some situations, for example if the employee is incapacitated, where that is not the case.”

5. Can the employer require an employee or the employee representative to complete a PWFA accommodation request form?

No. An employer may request that an employee or the employee representative complete a form, but even an oral request for an accommodation is sufficient for PWFA purposes.

6. Does the PWFA only apply to currently pregnant employees?

No. A pregnancy, childbirth, or a related medical condition can relate to a current pregnancy, past pregnancy, or a potential or intended pregnancy (including infertility treatment).

7. What is a “related medical condition”?

The regulations contain a non-exhaustive list, including pregnancy termination (via miscarriage, stillbirth, or abortion), nerve injuries, chronic migraines, dehydration, nausea, vomiting, high blood pressure, anxiety, depression, loss of balance, vision changes, lactation, and conditions related to lactation (such as low milk supply).

8. If a school uses a third-party to process its leave requests, can that school still be liable for PWFA violations?

Yes. The Appendix notes that actions taken by a third-party acting on behalf of the employer are attributable to the employer. Note, however, that the employer can negotiate an indemnification provision into a contract with a third-party administrator to reduce risk.

Eligibility

1. Who is a “qualified employee”?

A qualified employee is one who:

• With or without a reasonable accommodation can perform the essential functions of the employee’s position; or
• Cannot perform one or more essential functions of the employee’s position if: (A) the inability to perform the essential job function(s) is temporary; (B) the essential function(s) can be performed in the near future; and (C) the inability to perform the essential function(s) can be reasonably accommodated, which may include temporarily suspending the essential function(s).

2. What is an essential job function?

PWFA regulations use the same essential job function definition as the Americans with Disabilities Act (ADA) regulations, meaning an essential job function is one that is fundamental to the position. Whether a job function is essential is determined on a case-by-case basis, considering factors such as the employer’s judgment as to which functions are essential, the written job description for the position (if any), the amount of time the employee spends performing the function, and whether past employees in the same position performed the function.

3. Is there a minimum number of days or hours that an employee must work for the employer before that employee is entitled to PWFA protections?

No. An employee is eligible for PWFA protections on the first day of employment.

4. Is an employee entitled to an accommodation because the employee has a limitation related to someone else’s pregnancy, childbirth, or related medical conditions?

No. For example, the Appendix states that “a spouse experiencing anxiety due to a partner’s pregnancy is not covered by the PWFA.”

Reasonable Accommodation

1. What is a reasonable accommodation?

Whether an accommodation is reasonable is determined on a case-by-case basis. The PWFA regulations list examples of possible reasonable accommodations, including part-time or modified work schedules; reassignment to a vacant position; providing a reserved parking space; breaks for lactation in an area that is not a bathroom and that is reasonably proximate to the employee’s usual work area; telework; and leave to attend appointments or receive treatment. A reasonable accommodation may also include suspending one or more essential job functions.

2. An employer is required to provide a reasonable accommodation in certain circumstances, provided there is no undue hardship. What is an undue hardship?

An undue hardship is significant difficulty or expense, which is determined on a case-by-case basis. Factors to consider include the accommodation cost, the facility’s overall financial resources, the employer’s overall financial resources, and the impact the accommodation would have on the facility, including on the ability of other employees to perform their duties.

3. Is a concern that other employees will request the same accommodation in the future an undue hardship?

No. The Appendix states that an employer “cannot demonstrate that a reasonable accommodation imposes an undue hardship based on the possibility – whether speculative or near certain – that it will have to provide the accommodation to other employees in the future.” Instead, the employer must evaluate each accommodation request until the requested accommodation becomes an undue hardship. For example, granting leave to one employee may not be an undue hardship, but another employee’s request for leave as an accommodation may be an undue hardship if too many employees are already on leave.

4. How does an employer determine whether a PWFA accommodation is reasonable?

The PWFA incorporates the ADA interactive process. Accordingly, an employer and employee should engage in that informal process to identify the known limitation, the work adjustment that is needed due to the limitation, and the reasonable accommodations.

5. If there is more than one reasonable accommodation, is an employer required to provide the employee’s preferred accommodation?

No. The employer has the discretion to choose from reasonable accommodations.

6. Is an employee required to accept an employer’s proposed reasonable accommodation?

No. The Appendix notes, however, that if an employee’s rejection of a reasonable accommodation results in the employee being unable to perform the essential job functions of the employee’s position, then the employee is not “qualified” and loses PWFA protection.

7. Are there any accommodations that are presumed to be reasonable and do not cause an undue hardship?

Yes. Although PWFA regulations do not use the term “presumed,” they state that certain accommodations will “in virtually all cases” be reasonable and not cause an undue hardship. Those presumed accommodations include allowing an employee, as needed, to:

• Carry or keep water near and drink;
• Take additional restroom breaks;
• Sit or stand; and
• Take breaks to eat and drink.

PWFA regulations state that for an employee requesting one or more of the above accommodations, the interactive process “should be particularly simple and straightforward.”

8. If an employee requests the employer to suspend one or more essential job functions, should the employer and employee consider other reasonable accommodations that would enable the employee to perform all the employee’s essential job functions?

Yes. As discussed above, an employee is “qualified” under the PWFA if the employee can perform the essential job functions of the employee’s position with a reasonable accommodation. In certain limited circumstances, an employee is also qualified if the employee cannot perform those functions. The Appendix states that “many employees” will be able to perform their essential job functions with a reasonable accommodation and that suspension of essential job functions “is relevant only when an employee cannot perform one or more essential functions of the job in question, even with a reasonable accommodation.”

9. Does the PWFA require an employer to grant paid leave as a reasonable accommodation?

No. Nothing in the PWFA requires paid leave.

10. If an employer grants leave as a PWFA reasonable accommodation, is the employer required to reinstate the employee to the same position after the leave?

It depends. The Appendix states that an employee granted a PWFA reasonable accommodation is entitled to return to the employee’s same position unless:

• The employer demonstrates that holding the position open would impose an undue hardship; or
• The employee is no longer qualified, meaning that the employee can no longer perform the essential functions of the employee’s position after the leave.

11. If an employer grants leave as a PWFA reasonable accommodation, is the employer required to maintain the employee’s health insurance?

It depends. The Appendix states that “an employer must continue an employee’s health insurance benefits during their leave period to the extent that it does so for other employees in a similar leave status, such as paid or unpaid leave.” For example, if an employer maintains health insurance for employees on ADA leave, the employer likely must maintain health insurance for employees on PWFA leave.

12. If an employee’s representative requests a reasonable accommodation on the employee’s behalf, is the representative entitled to participate in the interactive process without the employee’s consent?

It depends. The Appendix states that once the employer is made aware of the PWFA limitation, “the representative’s participation in any aspect of the reasonable accommodation process is at the discretion of the employee.” The Appendix adds, however, that “in some situations, for example, when the employee is incapacitated . . . the [employer] will need to continue to engage with the representative rather than the employee.”

13. Is time off to bond with a child or to care for the child a reasonable accommodation?

No. The Appendix states that time for bonding or childcare is not covered by the PWFA. Note, however, that an employee may be entitled to such time off under the Family and Medical Leave Act.

14. Neither the PWFA nor the ADA require an employee to use any specific words when requesting an accommodation. Should a school process an employee’s accommodation request under both statutes?

It depends. Pregnancy is not an ADA disability. There may be situations, however, when an employee request triggers a duty to provide a reasonable accommodation under both the PWFA and the ADA. The Appendix provides an example of a pregnant employee requesting leave for gestational hypertension resulting from the pregnancy, suggesting unpaid leave may be a reasonable accommodation that satisfies both the PWFA and the ADA.

Supporting Documentation

1. Can an employer request supporting documentation?

It depends. An employer may request supporting documentation in response to a PWFA accommodation request only when it is reasonable under the circumstances to determine whether the employee has a physical or mental condition related to, affected by, or arising from pregnancy, childbirth, or related medical conditions (i.e., a limitation) and needs a change at work due to the limitation.

2. May an employer require employees to submit supporting documentation on a specific form?

No. PWFA regulations state that an employer may not require the supporting documentation to be submitted on a specific form.

3. What documentation may an employer request?

An employer may request the minimum documentation that suffices to confirm the employee’s PWFA limitation and describe the work change needed due to that limitation.

4. What are some examples of when it is not reasonable for an employer to request supporting documentation?

PWFA regulations provide the following examples:

• When the employee is pregnant and the requested accommodation is one of the accommodations listed in Question 7 above and the employee provides self-confirmation;
• When the accommodation is related to a time 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;
• When the limitation and need for a change at work due to the limitation are obvious and the employee provides self-confirmation;
• When the employer already has sufficient information to determine whether the employee has a limitation and needs a change at work due to the limitation; and
• When employer policies or practices provide the accommodation to employees without PWFA limitations and the policies or practices do not require supporting documentation for such employees.

5. What is a self-confirmation?

A self-confirmation is “a simple statement” where the employee confirms the PWFA limitation and the work change needed due to the limitation.

6. May an employer require a self-confirmation to be in writing?

No, but the employer should document the self-confirmation. PWFA regulations state that an employer may not require the confirmation to be in a specific format, use specific words, or be on a specific form. The Appendix further clarifies that the attestation may be oral or written.

7. Should information an employer obtains from an employee in response to a PWFA accommodation request be maintained separately from the employee’s personnel file?

Yes. The Appendix reminds employers that subject to limited exceptions, the ADA requires employers to keep medical information of all applicants, current employees, and former employees confidential, even when they do not have disabilities. It also adds that disclosing information about an employee’s PWFA accommodation or limitation is generally prohibited because it is considered medical information.

8. Is Thrun developing policies or forms to assist schools with PWFA implementation?

Yes. A PWFA policy and accompanying forms will be provided to Thrun Policy Service subscribers at no additional charge during our annual July policy updates. The policy and accompanying forms will also be available for purchase at that time for schools that are not Thrun Policy Service subscribers.

Conclusion

With the release of the new PWFA regulations, we expect to see an uptick in PWFA accommodation requests. Accordingly, school officials should carefully review the PWFA and its regulations to be ready to respond to those requests. We will continue to monitor PWFA developments.