NAVIGATING THE EEOC’S RECENT REGULATIONS ON THE PREGNANT WORKERS FAIRNESS ACT
Posted on June 19, 2024 in Compliance
On April 15, 2024, the EEOC issued its long overdue final regulations enforcing the Pregnant Workers Fairness Act (PWFA). The regulations went into effect Tuesday, June 18, 2024. In broad terms, the PWFA is the ADA for pregnancy. The PWFA and the regulations enforcing the Act require employers to provide reasonable accommodations arising out of pregnancy, childbirth, or related medical conditions.
Here are our takeaways for employers.
- The EEOC regulations impose a broad meaning of “pregnancy, childbirth and related medical conditions.”
In the EEOC’s view, pregnancy and related medical conditions extend well beyond being with child. It includes past pregnancy, potential or intended pregnancy, infertility, fertility treatment, the use of contraception, and abortion. The inclusion of “abortion” immediately sparked litigation, and on Monday, June 17, 2024, a federal judge enjoined the EEOC from enforcement in Mississippi and Louisiana of the regulation as it relates to abortion. A similar challenge failed in Arkansas. The conflicting opinions will lead to further legal battles that are certain to make headlines.
- “Temporary” means 40 weeks … plus.
The PWFA requires reasonable accommodation for a woman unable to perform an essential function of her job for a “temporary” period. Unlike an unpredictable work injury or other illnesses, we know the duration of pregnancy. Employers should assume the obligation to reasonably accommodate extends from conception through childbirth and recovery.
- Accommodation means the temporary elimination of job requirements.
The regulations require an employer provide reasonable accommodation that allows a pregnant worker to continue in the job even if that means suspending “temporarily” essential functions of the job. This mandate applies to applicants as well. That means an employer must modify a job to remove hurdles that are otherwise requirements of the work even for someone not yet employed. The EEOC provides examples of temporary modifications including eliminating lifting restrictions. This may seem simple for some job positions but extremely challenging in more physically demanding work.
- Employers may not demand the use of specific medical forms or detailed medical explanations.
The EEOC regulations criticize employers who require employees to use medical forms when requesting accommodation. Indeed, the regulations specifically prohibit the use of employer written forms. Any doctor’s note will suffice. If an employer desires medical confirmation of a need for some specific accommodation it is limited in how and what it can obtain. An employer may only seek “reasonable documentation” to confirm the employee has a condition that requires a specific accommodation. An employer cannot inquire further and may not seek to obtain additional information.
- Expect work from home request as a form of accommodation.
Employers should prepare for telecommuting requests under the new regulations. The EEOC specifically identifies work from home as a potential reasonable accommodation. Nothing surprising since work from home is a commonly sought accommodation under the ADA. But the regulations provide examples for accommodating pregnant workers that make telecommuting an automatic option for common pregnancy related conditions (e.g., nausea).
In sum, the PWFA and the EEOC regulations enforcing the act will present serious challenges for employers just as the ADA did decades ago. Move slowly and cautiously — and get legal advice — when navigating these challenging waters.