EEOC Issues Rule Affecting How Employers Must Treat Pregnant Workers

Last year, Congress passed the Pregnant Workers Fairness Act (“PWFA”), 哪项规定拥有15名或15名以上雇员的私营部门雇主为下列已知限制提供合理便利, affected by, or arising out of pregnancy, childbirth, or “related medical conditions,” unless such accommodations will cause an undue hardship on the employer’s operations. While other laws prohibit discrimination based on pregnancy, 《澳门亚洲博彩平台排名》要求雇主照顾这些问题，即使这些健康状况是暂时的，不在《亚洲博彩平台排名》(" ADA ")的规定之内。.

As often happens with federal legislation, the PWFA itself is open for interpretation, 国会让平等就业机会委员会(Equal Employment Opportunity Commission)在“最终规则”中制定新的执行规定来填补空白.”  After months of public comment and review, the EEOC published its 408-page “final rule and interpretive guidance” regarding the PWFA on April 19, 2024, and it will go into effect on June 18, 2024.

Although Similar, PWFA Has More Stringent Requirements than the Americans with Disabilities Act

While the PWFA has processes and requirements similar to the ADA, there are notable differences between the two laws.

1. “Known limitation” of employee can be minor.

First, under the PWFA, a “known limitation” is broader than the disabilities covered under the ADA.  It must be a mental of physical impediment, but it does not need to be serious.  The limitation can include minor, common conditions as long as they meet the other requirements of the statute. In fact, according to the EEOC, 员工可以要求提供住宿，以减少与怀孕有关的增加的疼痛或对员工健康的风险, childbirth, or a related condition.

2. Worker only needs to provide notice of a limitation and a need for adjustment.

Second, as with the ADA, 雇主也必须通过雇员或雇员代表的沟通“知道”这些限制, although no specific language is necessary.  In essence, a request of accommodation only requires the employee provide notice to the employer that the employee has a limitation and, as a result, needs an adjustment or change at work.  这就促使雇主有义务与雇员进行互动对话，试图找到一个可接受的住宿.

3. Pregnancy is defined broadly.

The EEOC defines terms in the PWFA broadly. “Pregnancy” can refer to a current, past, or intended pregnancy. “Related medical conditions” include miscarriage, stillbirth, abortion, infertility, fertility treatment, lactation, birth control use, menstrual cycles, postpartum depression, gestational diabetes, changes in hormone levels, and a host of other similar conditions. Such conditions can even include common conditions, such as chronic migraine headaches, high blood pressure, and incontinence, as long as they relate to or are exacerbated by pregnancy and childbirth.

4. Unlike ADA, PWFA does not require employee to be able to perform job functions during short term.

Another difference between the ADA and the PWFA is how each defines an employee as “qualified.”  Like the ADA, 《澳门亚洲博彩平台排名》对合资格雇员或申请人的定义是，不论是否有居所，合资格雇员或申请人均可履行受雇职位的基本职能.  The PWFA, however, has a second, more stringent definition that states that even if the employee cannot perform the essential functions of the job, they are still considered “qualified” if (i) the inability to perform the essential function is temporary; (ii) the employee should be able to perform the essential function “in the near future,” and (iii) the temporary inability can be reasonably accommodated.  The EEOC defines “in the near future” as 40 weeks from the start of the temporary suspension of an essential function.  Essentially, then, the PWFA calls for the temporary suspension of an essential function or functions of the employee’s job if necessary.  This does not, however, 意味着怀孕雇员的基本职能必须暂停40周，或每项要求暂停40周的住宿要求必须得到批准.

Interactive Process and Undue Hardship Are Similar to ADA

As with the ADA, employers are expected to engage in an interactive process to explore possible accommodations. 如果有合理的替代方案，最终规则并不要求雇主提供雇员所要求的住宿, but if an employee’s requested accommodation does result in an undue hardship, the employer must consider any alternative that does not cause such undue hardship.

The final rule also provides several examples of possible reasonable accommodations under the PWFA, which include but are not limited to: (i) job restructuring; (ii) modified work schedules; (iii) more frequent breaks for use of the restroom, drinking, eating, and/or resting; (iv) modification of equipment, uniforms, or devices; (v) use of paid leave and additional unpaid leave; (vi) light duty; (vii) telework; (viii) temporary suspension of one or more essential functions of the job; (ix) reserved parking spaces; and (x) “other similar accommodations.”

The PWFA follows the definition of “undue hardship” used in the ADA, 雇主的运作需要很大的困难或费用，并侧重于特定雇主的澳门亚洲博彩平台排名和情况与提供特定住宿的成本或困难的关系. The final rule, however, 在确定一项基本职能的暂时中止是否会造成不适当的困难时，增加了可考虑的其他因素.  These include (i) consideration of the length of time that the employee will be unable to perform the essential function(s); (ii) whether there is work for the employee to accomplish; (iii) the nature of the essential function, including its frequency; (iv) whether the employer has provided other employees in similar positions who are unable to perform the essential function(s) of their positions with temporary suspensions of those functions and other duties; (v) if necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s) in question; and (vi) whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

The EEOC has cautioned, however, that the following modifications “virtually always found to be reasonable accommodations that do not impose an undue hardship: (i) carrying water and drinking it as needed; (ii) allowing additional restroom breaks; (iii) allowing sitting for those whose work requires standing and standing for those whose work requires sitting; and (iv) allowing breaks as needed to eat and drink.

Employer Can Violate the Law by “Unreasonably” Requiring Supporting Documentation

Under the final rule, 雇主无须向根据《澳门亚洲博彩平台排名》提出住宿要求的雇员或申请人索取证明文件. However, should the employer seek such documentation, 只有在合理的情况下，雇主才允许这样做，以确定雇员(或申请人)是否有与疾病有关的身体或精神状况, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs a change or adjustment at work due the limitation.  If the request is not reasonable under the circumstances, it violates the PWFA.  As part of the interpretive guidance, the EEOC provides that one such situation where the seeking of documentation would be unreasonable would be when “(1) the known limitation and need for reasonable accommodation are obvious; and (2) the employee confirms the obvious limitation and need for reasonable accommodation through self-attestation.” Put simply, if an employee informs an employer that she is pregnant and is “showing,” then documentation would be unnecessary.

PWFA Prohibits Retaliation and Threats

Finally, 工务局禁止报复任何雇员或申请人，因为他们反对工务局认定为非法的行为或做法，或曾提出指控, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the PWFA.  The final rule also prohibits coercion, intimidation, threats, 或干涉任何人行使《澳门亚洲博彩平台排名》所规定的权利，或协助或鼓励他人行使《澳门亚洲博彩平台排名》所规定的权利.

The preceding is not intended to be an all-inclusive review of the PWFA.  The final rule includes numerous additional requirements, examples, and limitations.  我们鼓励雇主在对可能与雇员怀孕或相关情况有关或由此引起的雇员采取任何行动之前，寻求合格的法律顾问. 

Jeff Wilson is Pender & Coward shareholder focusing his practice on employment law matters, including counseling and business litigation.