Title: Implementation of the Pregnant Workers Fairness Act
Citation: 29 CFR 1636
Issuing Body: Federal Equal Employment Opportunity Commission (EEOC)
Date Issued: April 15, 2024
Effective Date: June 18, 2024
In Brief: The new rule provides details on the implementation of the Pregnant Workers Fairness Act (PWFA) (42 USC 2000). PWFA provides employees certain rights regarding pregnancy, childbirth, and related conditions. (§1636.1.) Like most modern statutes, when our elected legislators passed PWFA, they left many details to be filled in by unelected bureaucrats in the executive branch. The new rule provides those details.
In Detail:
Coverage:
Employers:
U.S. Public and private employers with 15 or more employees, unions, employment agencies, and the Federal Government. (§1636.2(b).)
Employees:
All U.S. employees and applicants of covered employers. (§1636.2(c).)
Substance:
An important point is to understand the difference between to related concepts: “conditions” and “limitations”
First, you need to understand what conditions are at issue. The rule covers “pregnancy, childbirth, or related medical conditions.” (§1636.3(a).)
Then, you need to understand that the limitations which the employer must address are one more layer removed from those conditions because the limitations only need to be related to, affected by, or arise out of the conditions. (§1636.3(a).)
(Realize here that the author is a juris doctor, not a medical doctor, so these are illustrations that may have nothing to do with medical reality. But if your juris is sick, take two aspirin and call me in the morning.)
So, for instance, during pregnancy an employee may need to take more frequent breaks to check her blood sugar to manage her diabetes. Even if the diabetes is life-long, if the increased frequency of checks is because of her pregnancy, then this is covered by PWFA. In this instance, the condition is pregnancy. The limitation is the need for increased breaks for testing. While the breaks may be for a condition not covered, the limitation (the increased need) is still covered because her diabetes was “affected by” the covered condition of pregnancy.
As to limitations themselves, the rule (at §1636.3(a)(2)) says they can include limitations that would not qualify as a disability under the ADA. They can be “modest, minor and/or episodic.” The rule also indicates that the limitation could relate to “maintaining [the employee’s] health or the health of the pregnancy.” So don’t fall into the trap of thinking that a limitation can only pertain to an illness or something going “wrong” with the pregnancy. A woman enjoying a perfect, healthy pregnancy could still qualify for a limitation.
We then need to look at the expansive definition of “pregnancy, childbirth, or related medical conditions.”
The rule interprets the statute to mean not just a current pregnancy, but also a past, potential, or intended pregnancy. (§1636.3(b).)
Conditions arising from a past pregnancy could include recovering from an illness or injury incurred during a past pregnancy. The rule lists 33 separate examples of such conditions and explicitly says that this list is not exhaustive. Point being, if the condition arose out a pregnancy, then it’s covered. There is no restriction as to time. One of the examples is varicose veins. Hypothetically, if a varicose vein started because of a pregnancy 10 years ago, and the employee just now decided to have it treated, that would be a covered condition. (Remember, these are only physical or mental conditions. So the need to pick up your son from detention might have arisen out of a past pregnancy, but it’s not covered.)
The rule states that the need for fertility treatment and contraception are covered conditions.
Nothing in the rule says that it pertains only to women. So a man needing time off to attend fertility treatment, or to have a vasectomy, would also be covered.
The rule and its notes repeatedly stress that abortion and limitations arising from an abortion are also covered.
To require an accommodation, the limitation must be known to the employer. This does not mean “commonly known” as with some state statutes. Here, a limitation is only “known” if this limitation was communicated to the employer by the employee or employee representative. (§1636.3(a)(1).)
The rule creates a structure similar to the ADA in that it defines a “qualified employee” as one who can perform the essential functions of the position. (§1636.3(f).) Under the ADA, an employee ceases to be “qualified” if there is no accommodation that would allow him to perform the essential functions. But the new rule goes further.
Under the PWFA rule, an employee can be “qualified” even if she can’t presently perform an essential function (§1636.3(f)(2)) so long as:
the inability is not permanent (§1636.3(f)(2)(i)); and
the essential job functions could be performed in the near future (§1636.3(f)(2)(ii)); and
the inability can be accommodated by temporary suspension of the job functions.
This is a major expansion beyond the ADA. The rule of thumb under the ADA is that an accommodation means helping the employee do her job; it does NOT mean allowing the employee to NOT do her job. Under the new PWFA rule, an employer will have to consider an employee simply not accomplishing certain tasks.
The rule also provides non-exhaustive means of determining what is and is not an essential function. These are actually fairly sensible and straightforward so I’ll just cut and paste them directly from §1636.3(g):
(1) A job function may be considered essential for any of several reasons, including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for their expertise or ability to perform the particular function.
(2) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time that would be spent on the job performing the function during the time the requested accommodation will be in effect;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
As to what constitutes a reasonable accommodation, the new PWFA rule tracks the ADA and ADA caselaw but repeatedly stresses that leave and reduced schedules will typically be considered reasonable. (§1635.3(h) and (i).) Similarly, the rule provides a framework for determining whether or not a requested accommodation creates an undue hardship. (§1635.3(j).)
The rule also keeps the ADA’s low threshold for what communication from an employee will be considered a request for an accommodation. (§1635.3(h)(2).) As with the ADA, that communication need not be detailed or formal.
Another departure from the ADA is that the new PWFA rule creates conditions in which an employer may NOT insist on documentation for an accommodation. (1635.3(l).) These include: when the limitation is “obvious”; when the employer already has sufficient information; when the accommodation pertains to pumping; when the accommodation is made available to other employees without documentation; and when the accommodation is: water availability, restroom breaks, sitting/standing, or nourishment.
Finally, as is typical for modern workplace rules and statutes, the new PWFA rule includes non-discrimination and remedy provisions. (§1636.5.)
Future Government Action Required:
None. This Rule now implements the PWFA. The EEOC will begin enforcing this new rule immediately.
Immediate Action Items for Employers:
Fortunately, employers in Minnesota at least have been accommodating pregnancy in ways very similar to what the rule requires. For most employers, no policies will need to be explicitly changed. Instead, employers will now have this framework available when making accommodations.
Date of this Report: April 26, 2024
Author: Cory Genelin, cgenelin@gislason.com
