EEOC Releases Final Regulations Implementing the Pregnant Workers Fairness Act

1. The conditions that may need to be accommodated by the PWFA make up an expansive list and the regulations explicitly say that whether an employee has such a condition will be construed broadly. While some of the conditions “related to . . . pregnancy” are obvious, others may come as a surprise to some employers, which McGuireWoods noted in a prior legal alert. “Modest, minor, and/or episodic” conditions may need to be accommodated, as would situations when the employee is seeking healthcare related to pregnancy, childbirth or a related medical condition. This includes appointments for fertility treatments, routine prenatal appointments and appointments related to the termination of a pregnancy. While the proposed regulations provided for the possibility of lactation-related accommodations, one notable addition to the final rule is a provision that accommodations may need to be made “related to nursing 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).”

2. Employees may be “qualified” under the act even if they cannot perform one or more essential functions of their job. The PWFA provides that an employee may be “qualified,” and therefore covered by the PWFA, if the employee “with or without reasonable accommodation, can perform the essential functions of the employment position.” This is a familiar definition borrowed from the ADA. However, under the final rule, employees may also be qualified even if they cannot perform one or more essential functions of the job. This is true provided three conditions are met: (a) the inability to perform an essential function is for a temporary period; (b) the essential function could be performed in the “near future”; and (c) the inability to perform the essential function can be reasonably accommodated. For a current pregnancy, “in the near future” is generally 40 weeks from the start of the temporary suspension of an essential function. For conditions other than a current pregnancy, the regulations do not define a specific time for “in the near future.” Rather, “in the near future” will be determined on a case-by-case basis.

3. Certain accommodations (i.e., “predictable assessments”) will be reasonable in “virtually all cases.” The “predictable assessments” that the EEOC identified in the proposed regulations remain in the final rule and are those accommodations that the EEOC says will be reasonable “in virtually all cases.” These modifications include allowing:

• an employee to carry and drink water in the employee’s work area;
• additional restroom breaks;
• an employee whose work requires standing to sit and vice versa; and
• additional breaks to eat and drink.

4. The final rule provides a robust set of examples of accommodations that may be reasonable to guide employers. Potential reasonable accommodations under the PWFA include frequent breaks (e.g., for the restroom or to eat/drink); sitting/standing modifications; schedule changes, part-time work and paid and unpaid leave (including for medical appointments or to recover from childbirth); telework (e.g., to accommodate a period of bed rest or mobility impairment); parking (e.g., a reserved parking spot); light duty; making existing facilities accessible or modifying the work environment (e.g., allowing elevator access, providing a fan, or moving the employee’s workspace closer to a bathroom or away from fumes); job restructuring; temporarily suspending one or more essential functions; acquiring or modifying equipment, uniforms or devices; and otherwise adjusting or modifying examinations or policies.

5. Interim accommodations may be necessary in some circumstances. The preamble to the regulations says that the provision of an interim reasonable accommodation is not required but is a “best practice under the PWFA” and may help an employer defend against allegations of unreasonable delay in providing an accommodation or of retaliation. The illustrations in the Interpretive Guidance provide that such an accommodation may be necessary while the interactive process is ongoing or if there is a sudden onset of a limitation under the PWFA due to an emergency or otherwise.

6. Nothing in the regulations requires an employer to provide an accommodation to an employee under the PWFA if doing so would create an undue hardship. The definition of “undue hardship” under the PWFA is the same as under the ADA — a significant difficulty or expense incurred by the employer. Whether an accommodation poses an undue hardship is an individualized assessment guided by the factors set out in the final regulations, which include the following:

• the nature and net cost of the accommodation needed under the PWFA;
• the overall financial resources of the covered entity involved in providing the reasonable accommodation, the number of employees at the facility, and the effect on expenses and resources;
• the overall financial resources of the covered entity, overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities;
• the type of operation(s) of the covered entity, including the composition, structure and functions of the workforce, and the geographic separateness and administrative or fiscal relationship of the facility to the covered entity; and
• the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

The regulations also provide a second set of factors to assess whether temporarily suspending an essential function would impose an undue hardship, and those factors remain unchanged to those in the proposed rule discussed in McGuireWoods’ prior legal alert.

In addition to those factors, the Interpretive Guidance to the regulations says that employers cannot demonstrate an undue hardship based on the possibility — whether speculative or certain — that they will have to provide the accommodation to other employees in the future. However, employers can consider the impact of past and current cumulative costs or burdens of accommodations that already have been granted to other employees (or the same employee) when considering a new accommodation request.

7. Employers should not make unreasonable requests for supporting documentation. Like the ADA, the PWFA allows (but does not require) employers to seek supporting documentation from the employee related to the necessity of the accommodation, but the request for documentation must be reasonable. The regulations outline several examples of when an employer’s request for documentation is unreasonable. For instance, it is unreasonable to require documentation when an obviously pregnant employee confirms that she is pregnant and seeks a uniform adjustment or when an employee requests one of the four “predictable assessment” accommodations. Similarly, given the “obvious fact” of lactation post-pregnancy, it would be unreasonable to require documentation for accommodations related to lactation (e.g., the need to pump during a shift or to nurse during business hours).