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Pregnancy Accommodations and the PWFA’s Final Regulations—Your Questions Answered

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July 2, 2024

The EEOC’s final regulations and interpretative guidance implementing the Pregnant Workers Fairness Act provide important clarifications and insights into how the EEOC will enforce the law. The PWFA went into effect on June 27, 2023. 

Transcript

Welcome to Jackson Lewis’ podcast, We get work™. Focused solely on workplace issues, it is our job to help employers develop proactive strategies, strong policies, and business-oriented solutions to cultivate an engaged, stable, and inclusive workforce. Our podcast identifies issues that influence and impact the workplace and its continuing evolution and helps answer the question on every employer’s mind. How will my business be impacted?

The EEOC’s final regulations and interpretive guidance implementing the Pregnant Workers Fairness Act provide important clarifications and insights into how the EEOC will enforce the law. Effective June 27th, 2023, the PWFA requires employers with at least 15 employees and other covered entities to provide reasonable accommodations to a qualified employees or applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions unless the accommodation will cause undue hardship on the operation of the employer’s business. On this episode of We get work™, we discuss the EEOC’s final rule, identify how the final rule differs from the proposed rule, and offer guidance on compliance strategies and clarify changes, while specifically addressing questions raised during our May 10th, 2024 webinar.

Today’s hosts are Joe Lynett and Katharine Weber, principals and co-leaders of the Disability, Leave and Health Management Practice Group. In their joint role, Joe and Katharine help employers manage employees who request accommodations and leaves of absence due to disability, pregnancy, childbirth and related medical conditions, serious health conditions of themselves or family members, religious beliefs, military service, and other reasons protected under state and local laws. Joe and Katharine, the question on everyone’s mind today is, how can I comply with the new PWFA regulations and how will those regulations impact my business?

Hi, my name is Joe Lynett. I’m here with my partner, Katharine Weber from Jackson Lewis. And today we’re doing a podcast addressing some really interesting questions we received during a webinar that Katharine and I gave discussing the PWFA final regulations, the Pregnant Workers Fairness Act. Now, typically Katharine and I would address these questions during the webinar itself, but there were 2,000 people attending this webinar. And I think we’ve had about 2,000 questions, too. Yeah, exactly. And we realized pretty quickly that there was no way that we could ever possibly do justice and answer even a fraction of those questions. So we decided that we’d have a whole separate podcast talking about kind of the questions that we received and how to resolve them because the PWFA is a new law and employers are really trying to understand how to comply with it.

There are some roadmaps that employers have typically used to try to comply using their ADA accommodation process. But as you’ll kind of find out that the PWFA is different, a different objective than the ADA, some more restrictions on the types of information you can request. So it doesn’t so easily translate into an accommodation process for the PWFA. Right, Katharine, would you?

Yeah, no, I completely agree. And in fact, I think that when you take a look at the final regulations that were issued by the EEOC, I would say that the one big knockout punch, if you will, that we found in the final regulations is that the EEOC really has no use for our, you know, trying to basically use our ADA medical questionnaire forms and our typical forms and processes and lay that on top of the PWFA. They really do envision that we’re going to handle these requests in a different manner.

Now that doesn’t mean that we can never ask for medical information at all. It doesn’t mean that we can’t have a process in place. In fact, we should. It doesn’t mean that we can’t have template forms. Those are all great ideas, too. But the process that we’re going to use under the PWFA looks very, very different and is almost the opposite approach of what we would take under the ADA. So, you know, we’ll talk about that process and how it differs from the ADA and just that very practical, you know, lens, if you will, about how you would actually walk out and administer the PWFA as compared to the ADA.

But first, Joe, I’ve got a couple of questions for you. And I promise I won’t ask. I promise I will not ask you all 2,000 that we got. Right. But I am going to start with just a few, just a level set for our folks. You know, we got a few questions where people were asking us about the length of time that an employer has to accommodate somebody for either pregnancy, childbirth, or a pregnancy-related medical condition.

And I think a lot of people expected that there was going to be some time limit around when the employee would have to be accommodated, maybe, you know, three months before they delivered to three months after they returned from work. But that really didn’t turn out to be the way the EEOC wrote their final regulations. So Joe, is there a length of time after delivery of a child that the employer has to continue to consider requests for accommodation under the PWFA by an employee?

Yeah, we received a lot of questions about this particular area because, I mean, commonly I think many people regard accommodation of pregnancy as the accommodation period during pregnancy and for perhaps even the six-to-eight-week period post-childbirth recovery. But the PWFA makes clear that there really is no defined length of time. There’s no end date to the time in which employers are no longer required to consider accommodations related to pregnancy. And that in large part is due to the vast amount of conditions that can arise out of pregnancy well after childbirth that are related to pregnancy. So the short answer, Katharine, is that there’s no per se end date. And employers may be in a situation where they will have to consider accommodating pregnancy-related conditions long after the employee has given birth and even has recovered physically from the childbirth.

Sure, and in fact, you know, the same can be said of before the pregnancy too, right? I mean, and I think all of that really relates to the fact that the way the EEOC defined pregnancy, childbirth, and related medical conditions is far broader than, you know, what I think most people would expect.

And so, you know, certainly for a current pregnancy, we’re talking about 40 weeks, right? But any sort of an accommodation request that’s, you know, before somebody gets pregnant or after they return to work following childbirth. I mean, there’s no time limit on that, right?

No. Okay. It’s a question of causation. Is it caused by pregnancy? Is it related? Did it arise out of the pregnancy? Or childbirth or one of those related conditions, right? Because certainly, you know, there are conditions that can be exacerbated by pregnancy and childbirth that occur commonly throughout the population amongst women who aren’t pregnant or are not caused by pregnancy, like carpal tunnel, for example.

Right, absolutely. So, you know, I think that there are things that we would commonly expect with respect to somebody who’s pregnant, right? We would expect them to have some morning sickness. We would expect them, I mean, maybe they would have some back pain or some swelling, or maybe they could have carpal tunnel, right, if they have enough fluid buildup that that starts to impinge on nerves in their arms, et cetera, and you could certainly get a pregnancy-related case of carpal tunnel. But when we look at how the EEOC addressed what constitutes pregnancy, childbirth, and related medical conditions, some of the things I think that are up for grabs or up for debate, if you will, when we get into the litigation are going to be things like, well, is menopause covered? Right? Well, maybe. Right. The EEOC says you need to look at a hormonal level, right? Whether the pregnancy has or childbirth has altered the hormone levels that could impact on the severity of menopause. What about menstruation? I think we just saw the EEOC put out some piece last week about menstruators, right? Clearly, they think that menstruation is connected enough to be a pregnancy-related medical condition.

It’s going to depend on the medical opinion of the employee’s healthcare provider, connecting the pregnancy, child and childbirth to a medical condition, which occurs naturally, right? Menopause is a natural part of human life as well as menstruation that may potentially be covered. Menopause by its very nature may be covered long after the employee’s childbearing years, right?

Right, right, right. And then we have things, the EEOC suggests that things like IVF, you know, fertility treatments and abortion, postpartum depression and anxiety, all of those things, you know, fall within the examples that the EEOC gave to us as potentially somebody that something that might be considered protected limitations under the law. So it’ll be interesting.

Yeah, I mean, it really and the big takeaway there is that there are a vast array of conditions that the EEOC specifically identifies as possibly covered under the PWFA, right? So it’s really gonna come down to can the employee’s healthcare provider make a reasonable connection between the current medical condition, the current, could be a psychological condition too, and the pregnancy?

Right. And or just the limitation, right? I mean, because we don’t have to, you know, a specific medical condition necessarily, if it’s just a limitation arising out of the pregnancy or the childbirth. Well, here’s a fun one for you, Joe. Yeah. So what kind of what kind of protection do men get under the PWFA?

I think very little in terms of accommodation. You know, there was some you have one question we got is, would men would men undergoing fertility treatment be covered? Well, not their own fertility. Well, I suppose that is their own fertility treatment, but probably not.

How about if a man were undergoing fertility treatments and having side effects? Can they request an accommodation under the PWFA?

Katharine, sort of my view on this, and I think it’s consistent with the EEOC regulations, is that it protects, the PWFA protects pregnancy, childbirth, and related medical conditions. It is gender specific. Men, on the other hand, a man in this situation, while not protected under the PWFA, may be protected under the ADA, right?

Right, or the FMLA, right? Or the FMLA, right, if they need time off.

Sure, for sure. Or I guess we could even have state paid sick leave law coverage of that issue. But I see the PWFA as very similar to the ADA in that regard, right? I mean, under the ADA, you know, the law does not require us to accommodate a family member who has a disability. And under the PWFA, the law does not require us to accommodate a family member who has some condition that’s related to the employee’s pregnancy, childbirth or related medical condition. So I think that’s an easy way to remember it. Yeah, I think that’s right.

So, Katharine, let me ask you, you know, we’ve dealt with, you know, we’ve discussed questions around you know what medical conditions are covered or possibly could be covered. I think we got a bunch of questions practical questions from attendees on reasonable process best practices, how to, how to for employers. What are your thoughts on how employers should go about addressing accommodation request under the PWFA because a lot of the, a lot of the questions we’ve gotten. A lot of what I’ve read just out there in the literature is that a lot of employers are of the view that they can either tweak or just use their FMLA process, but pardon me, their ADA process to evaluate accommodations under the PWFA, just like they evaluate accommodation requests under the ADA. What are your thoughts on that?

I think that we’ve done a great job as an employer community, trying to be consistent about how we handle accommodation requests covered by the ADA. But I think that we have to absolutely stop using that as our default setting. That is no longer your default setting when it comes to the PWFA. When it comes to the PWFA, you know, what the EEOC makes clear is, look, if you’re using your ADA forms, your accommodation forms and that medical provider request for information form under the ADA that you may have developed, it may be a fantastic form, but it has limited utility under the PWFA because under the ADA, those questions are all related to whether or not somebody has a physical or mental impairment that substantially limits a major life activity.

But that is not the test under the PWFA, right? I mean, under the PWFA, we only need to know whether or not the person has a limitation due to pregnancy, childbirth, or related medical condition. So if we’re asking our employees to have their healthcare providers fill out that ADA questionnaire, we’re likely asking for information (A) that’s not even on target, and (B) is more information than we’re entitled to receive.

So, you know, and the other part, as I said, you know, we’ve done a great job of getting our consistency down pat and we have this default setting of person asks for an accommodation. We’re going to give them the healthcare provider form and we’re going to ask them to have the healthcare provider complete that form and return it back. But under the PWFA, what the EEOC envisions is that the employee will let you know that they’re limited due to pregnancy, childbirth or related medical condition. And then if it is one of the four predictable assessments or it’s lactation, then you’re going to quickly provide it, right? You don’t need any additional medical information in order to grant that accommodation request.

So, and to be clear by the four predictable assessments, if the person is asking for the opportunity to carry or keep water nearby and drink, or if they’re asking for additional restroom breaks, right? Or if they’re asking for the ability to sit when their job principally requires standing or vice versa, or they’re asking for breaks to eat or drink while they’re pregnant. All of those things fall under predictable assessments, and we don’t need medical information in order to grant those. And the same thing would be said of lactation, you know, as well, right?

So the only time we really get to ask for medical information is when the condition is not obvious, like the pregnancy or the childbirth is not obvious, and the extent of the accommodation is not known. And that’s really different than the ADA process, where I think employers are almost, as it’s just a matter of course, request medical information. Because oftentimes, a disability is not so obvious, you know, whereas pregnancy is, you know, when we’re talking about, you know, an actual pregnancy.

So I think, you know, reading the final regulations, you know, it seems like the message that the EEOC is sending is that, you know, you shouldn’t be spending a lot of time requesting medical input, right?

Especially due to the kind of, in some ways, the urgency is some of the accommodation request that we’re talking about, right, these four predictable assessments that that you mentioned before these are kind of more just more urgent needs, right, additional bathroom breaks is needed, keeping water nearby, sitting instead of standing, breaks to eat and drink, you know, your typical ADA accommodation process even under the best circumstances usually takes place over the course of 30 days and that’s when there are no glitches but so, for something like these predictable assessments, you can’t, you know, it would be almost cruel, right? To wait 30 weeks while the accommodation process works out.

So, you know, it sounds to me, Katharine, like employers need to rethink their accommodation process under the PWFA. You know, certainly, you know, employers I think have gotten accustomed to the ADA process and the interactive process under the ADA, but it doesn’t seem to translate so well or too perfectly into the accommodation process under the PWFA. And in fact, as I think as you point out, may cause an employer to run afoul of the law. Right.

Right. Because you’re asking for more information than you’re entitled to receive. Right. And that’s not even considering state and local law. Right. Because there are there are a host of state and local laws that place even more restrictions, even more explicit restrictions on an employer’s ability to request medical information to evaluate accommodations related to pregnancy and childbirth.

Right. I mean, I think my last count was 13 jurisdictions, state and local jurisdictions, that will limit, you know, when an employer can ask for medical support when it comes to a pregnancy or childbirth-related accommodation request. And I’m sure that number will continue to grow, right? I mean, the state and local legislatures are very active in this space. Not only are we seeing it in the accommodation space, but we’re seeing a lot of action in terms of paid lactation breaks, right? I mean, we’ve got a couple of jurisdictions now that require that those breaks be paid.

But one thing that I saw from a recent scenario I thought was really interesting. I had an employer who had really done a wonderful job in terms of instead of starting with forms, they started with a conversation, right? And they had this wonderful conversation with the employee about what is it that you need and how will it help you? And, you know, how long do you think that you’ll need it? And, you know, are there any other alternatives? They had this great conversation. Essentially, they were just having a dialogue with the employee about the information that you really wouldn’t otherwise be able to ask of the doctor in the form, in the way of getting a form, but they were just gathering that sort of information from the employee so that they can make a good decision with the employee about what kind of accommodation they needed and for how long and whether or not there were any alternatives that might work. And I think that that’s a wonderful practice to adopt.

It’s gonna take some some trial and error to get it right. But I think all of that really is, it’s gonna come down to great training for your HR professionals and also letting your managers know when they should be triggered. And I say that in a good way, triggered to let HR know that there is a PWFA request that’s been made and they need some assistance in terms of properly handling it. 
So Katharine, maybe, even the last bucket we have time to talk about of questions relates to lactation breaks and pumping in the workplace and how that interacts with the PUMP Act, right? Which has been on the, you know, the right to a lactation break has been, you know, been on the books for several years. And the PWFA requires accommodations related to pregnancy and lactation and pumping is a condition related to pregnancy. But it was interesting.

One significant change, substantive change that the EEOC made from the proposed regs to the final regs was this accommodation related to nursing, which is different than pumping. It’s actually nursing, breastfeeding in the workplace. So there were questions around, you know, what is the scope of that accommodation?

Right. Because the PUMP Act, you know, creates a right to break for a break to pump doesn’t necessarily state that it’s nursing, but the EEOC explicitly added nursing to conditions, lactation conditions that employers must accommodate. What do you have to say about that? What do you want? What should an employer think about that?

Sure. Well, so, you know, the EEOC really did kind of cross lanes, if you will, with the Department of Labor when they added lactation as something that would have to be potentially accommodated under the PWFA. It’s not, it’s certainly not out of step with how we’re looking at the definition of pregnancy, childbirth and related medical conditions.

You know, we have seen the case law for years and years and years that lactation is related to pregnancy under the Pregnancy Discrimination Act. So this is not a great shocker, right? But I think when the EEOC goes in and then they add or they layer additional accommodation obligations on it, it gets challenging for employers. And I think the big one, you know, that they layered on top was this, right, you know, if the employee has proximity with their child and they want to pump, not pump, pardon me, they want to nurse in the workplace, place, then the EEOC says that that could be potentially a reasonable accommodation under the PWFA.

So you think about perhaps you’re an employer and in your building there’s a daycare provider or you’re a healthcare provider and there’s space already set up where people can pump, right? Those are situations I think where it’s going to be really easy for the EEOC to say, well, certainly the child can be in close proximity to the nursing mother. And, you know, certainly there could be the right to actually breastfeed in that setting. I don’t think that they meant to suggest that there’s this right, you know, to, okay, well, you get to automatically stop your work at this hour and run 20 minutes to your house and pump from your home and then come back. I don’t think that that’s what they were saying at all. So I don’t think that they were saying that the employer has to create the proximity. But if the proximity already is available or it’s already existed, I think that’s right. That’s where the EEOC views it as a potential accommodation. Yeah. So I think that’s right that there’s no right to proximity. Proximity is a sort of a condition, if you will, to evaluating a request to nurse, right? That the infant already needs to be in close proximity. The accommodation isn’t meant to create the proximity.

Absolutely. But you’re right. It’s going to occur in situations where the employer may be providing daycare on site. Certainly, it’s going to occur at home, right? Where presumably the child is already in close proximity. So, you know, but I think that another takeaway here is that it just adds another layer of compliance and potential claims, right, for, you know, by an employee that they were not accommodated due to pregnancy, that their need to pump or lactation breaks were not accommodated, and it can be potentially violative of both, both the PUMP Act and the PWFA. Right.

And, you know, I think all of this is so new still for employers. I mean, granted, you know, the law has been in effect since what? June of 2023, right? I mean, it was enacted late December of 2022, went into effect in June of 2023, but we just recently got the final regulations. So it’s going to take a while for employers really to get up to speed and to get really good at accommodating people who make requests for changes in how they work or policies or other types of accommodation requests under the PWFA. But eventually we’ll definitely get there just the same way as we got there under the ADA, right? I mean, when the ADA was enacted, everybody went, my gosh, how are we ever going to come into compliance with this law that’s gonna require so much different from, you know, so many things are different than what we’re normally used to doing. But, you know, this will come to us naturally as well.

Yeah. Well, I think our time is drawing near, Katharine. We’re going to see how this all plays out over the course of the upcoming years. And particularly, I think, the first few years a new law is in effect. The courts and the agencies really do create a scope of interpretation around how the law applies, where it applies, where it doesn’t apply, the limits of employers’ obligations, and so forth.

It will certainly be a story in progress. That’s right. That’s right. So for folks who want to keep abreast on the new developments under the PWFA, you know, as cases, you know, are decided, make sure that you’re following our blog, make sure, you know, that that you are keeping up to date on this space so that you can make sure you’re making great decisions when it comes to accommodating your employees under the PWFA. Thanks so much for joining us. This again is Katharine Weber and Joe Lynett with Jackson Lewis. We’ve enjoyed our time together.

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