04/24/2024 | News release | Distributed by Public on 04/24/2024 08:24
As noted in AFS's previous alerts (here and here), the PWFA, which went into effect on June 27, 2023, requires employers with 15 or more employees to provide reasonable accommodations for an employee or applicant's known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations would cause the employer an undue hardship.
The EEOC's final rule, which spans more than 400 pages, includes certain notable differences from the proposed rule, as follows:
Notably, under the final rule, the pregnancy, childbirth, or related medical conditions does not need to be the sole, the original, or a substantial cause of the physical or mental condition at issue in order for the physical or mental condition to be "related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions." In other words, this is an extremely lenient standard.
Perhaps the most controversial definition in the final rule is the inclusion of "having or choosing not to have an abortion" in the protected category definition. In particular, there has already been backlash from Republicans and certain religious groups who argue that the law's protections should not extend to workers who choose to have abortions or take birth control.
Both the proposed rule and the final rule include a list of possible reasonable accommodations under the PWFA, including:
An accommodation allowing for the temporary suspension of an essential function is a departure from the standard under the ADA. Both the proposed rule and the final rule, however, outline specific factors to be considered in determining whether a temporary suspension causes an undue hardship.
The following "simple modifications" (referred to in the rule as "predictable assessments") will generally be found to be reasonable accommodations that do not impose an undue hardship:
The final rule also provides additional factors that employers should consider when determining whether an accommodation poses an "undue hardship." Those additional factors include:
To request an accommodation, the employee "must identify the limitation (the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions) and that the employee needs an adjustment or change at work due to the limitation." Similar to the ADA, the request may be made either in writing or verbally.
An unnecessary delay in making a reasonable accommodation may itself be a violation of the PWFA. A best practice is therefore to offer an interim accommodation while the interactive process is completed. Failure to provide one of the predictable assessments listed above will generally result in a finding of unnecessary delay.
The PWFA also prohibits an employer from requiring a qualified employee with a known limitation to take leave, either paid or unpaid, if another effective reasonable accommodation exists, absent undue hardship and unless the employee requests a leave of absence.
Neither the proposed rule nor the final rule requires an employer to seek supporting documentation from an employee or applicant requesting an accommodation under the PWFA. Indeed, both rules state that an employer may only seek supporting documentation if it is reasonable to do so under the circumstances. The final rule, like the proposed rule, provides examples of when it would not be reasonable to request supporting documentation:
The final rule also departs from the proposed rule in defining "reasonable documentation" to mean the minimum documentation that is sufficient to (1) "confirm the physical or mental condition; (2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with 'a limitation'); and (3) describe the change or adjustment at work needed due to the limitation."
Employers may want to review their current policies and procedures to ensure compliance with the requirements of the final rule. They may also consider offering additional training to human resources professionals who will be handling requests for accommodations under the PWFA, particularly in light of the important differences between these requests and those under the ADA. Employers should work closely with experienced employment counsel to ensure that all requirements under the final rule are met by June 18.