Acting with uncharacteristic speed, the EEOC released proposed rules for the Pregnant Workers Fairness Act (PWFA), summarized here. Prior to the PWFA, pregnancy was not considered a disability under the Americans with Disabilities Act (ADA) and even some pregnancy-related medical conditions were outside the ADA’s reach. Now, employees and applicants with a range of pregnancy-related conditions can seek accommodations under the federal PWFA.
A quick refresher: the PWFA applies to nearly all employers with more than 15 employees to provide reasonable accommodations to qualified employees or candidates unless doing so will present an “undue hardship.”
The proposed rules seek to explain and clarify the application of the PWFA. Please note, the rules will not go into effect until the comment period closes, which is October 10, 2023. The PWFA has some major differences from the ADA that are worth noting, below. Here are some of the major takeaways:
- “Qualified” individual is broader than the ADA: An individual may still be qualified for their position even if they cannot perform one or more essential functions of the job–a big departure for the ADA. When would this apply:
- the inability is temporary
- the essential function can be performed in the near future (“generally forty weeks from the start of the temporary suspension of a job function”)
- the inability can be reasonably accommodated. That may mean that one or more of the essential functions is temporarily suspended, “with or without reassignment to someone else.”
- Mandated accommodations: The interactive process for determining reasonable accommodations must be employed but unlike the ADA, there are four accommodations that must be granted in “virtually all cases”:
- Additional rest room breaks
- Carrying water and drink as needed in the work area
- Sit if work requires standing and standing if work requires sitting
- Breaks, as needed to eat and drink.
- Potential reasonable accommodations under the proposed rule:
- Schedule changes, part-time work and paid and unpaid leave
- Light duty
- Job restructuring
- Temporarily suspending one or more essential job functions
- Modifying work environment
- Limited documentation is all the may be required: “Reasonable documentation” describes or confirms:
- The physical or mental condition.
- That the condition is related to, affected by or arising out of pregnancy, childbirth or a related medical condition.
- If the limitation is obvious or the employer has sufficient information, they cannot require more, such as lactation accommodation.
- Conditions that may not be immediately obvious but are related medical conditions under that Act are lengthy, and include pregnancy, past pregnancy, potential pregnancy, lactation, use of birth control, menstruation, infertility treatments, endometriosis, miscarriage, still birth and abortion. The EEOC stressed the list in non-exhaustive.