Welcome back to the final chapter of our three-part series exploring the EEOC’s final PWFA rules. In Part One, we examined the pre-PWFA landscape and why the PWFA was passed. In Part Two, we explored critical definitions that will impact your compliance efforts. For the final installment, we will explore the interactive process you will use to accommodate pregnancy-related limitations.
Reasonable Accommodation
What many employers miss about the accommodation process is that, at its core, it requires both parties to be flexible. Does that mean employers must give employees the exact accommodation they ask for? No! While you should consider the employee’s requested accommodation, you remain the judge of which accommodation is ultimately provided. Whether the employee is seeking accommodation under the ADA or the PWFA, one thing remains true – the EEOC wants to see that you provide effective accommodations.
So, what accommodations can be effective? The final rules provide a non-exhaustive list of reasonable accommodations. These examples include frequent breaks, sitting/standing, schedule changes, part-time work and paid and unpaid leave, telework, parking adjustments, light duty, making facilities accessible or otherwise modifying the work environment, job restructuring, acquiring or modifying equipment, uniforms, etc., and adjusting or modifying examinations or policies.
Be aware that the EEOC’s position is that some accommodations should be granted almost as a matter of course. Couched in terms of “predictable assessments,” such accommodations included: (1) allowing an employee to carry or keep water nearby and drink as needed; (2) allowing an employee to take restroom breaks as needed; (3) allowing an employee whose work required standing to sit or sitting to stand as needed; and (4) allowing an employee to take breaks to eat and drink as needed. The EEOC believes these accommodations are inherently reasonable and do not impose undue hardship in most situations.
Interactive Process
The final rule draws heavily from the interactive process used in the ADA accommodation process. However, the EEOC made a few critical points about how the interactive process should work. First, the employer and employee should engage in the process in good faith to reach an effective, reasonable accommodation. Second, given the temporary nature of pregnancy-related conditions, the EEOC encouraged employers to respond quickly to an employee’s request for accommodation under the PWFA. Finally, best practice includes granting an accommodation in the interim if the employer requires additional information about the requested accommodation. However, the EEOC recognized that the PWFA does not require interim accommodations.
Documentation
An employer evaluating accommodation requests under the PWFA is not required to seek supporting documentation from the employee. Employers may only seek documentation supporting an accommodation when it is reasonable for the employer to need documentation to determine whether an employee has a limitation covered under the PWFA. Documentation is reasonable when it sufficiently describes or confirms (1) the physical or mental condition; (2) the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical condition(s); and (3) the accommodation needed due to the limitation.
The EEOC’s final rules clarify that seeking documentation under the PWFA is risky. The rules provide five instances where seeking additional documentation is prohibited: (1) the requested accommodation is obvious and the employee provides self-confirmation; (2) when the employer has sufficient information to determine that an employee has a covered limitation requiring accommodation; (3) when the employee is pregnant and seeks one of the accommodations listed as a predicable assessment; (4) when the accommodation is related to a time or place to pump at work; and (5) when the requested accommodation arises under the employer’s policies without regard to known limitations.
Recommendations
Employers must prepare to comply with the PWFA before the final rule takes effect on June 18, 2024.
- Update policies and practices to ensure there is a process for accommodating applicants and employees with limitations relating to pregnancy, childbirth, or related medical conditions.
- Ensure there is a process for accommodating lactation in the workplace.
- Consider your company’s approach to providing PWFA accommodations, particularly related to the rule’s “predictable assessments,” which are almost always considered reasonable and granted absent a specific finding of unreasonableness or undue hardship.
- Train management and human resources teams to ensure awareness of these changes in the law.
- Become familiar with the interpretive guidance’s examples of reasonable accommodation to understand your obligations under the PWFA.
- Post an updated EEO poster that includes the PWFA.
* In State of Texas v. Merrick Garland, et al., the court issued an order blocking the enforcement of the PWFA against Texas and its agencies, holding that the Act’s passage through proxy voting violated the Constitution’s quorum clause. This ruling has not been extended to private employers, though the argument presented by the State of Texas is equally available to private employers.
Subsequently, on April 26, 2024, a coalition of state attorneys general filed a lawsuit challenging the EEOC’s interpretation of the PWFA, particularly its inclusion of abortion-related accommodations. The suit argues that these regulations exceed the scope of the PWFA’s guidelines.
These legal challenges will directly impact the enforcement of the PWFA and the implementing rules and could affect employer compliance strategies. Crowe & Dunlevy will continue to monitor developments in these legal challenges to the PWFA and update this article with any significant changes.
If you have any questions regarding the EEOC’s PWFA Final Rules, please contact Chris Vaught or another member of the Labor & Employment Practice Group.