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On Monday, April 15, the United States Equal Employment Opportunity Commission (EEOC) released its final regulations and guidance related to the Pregnant Workers Fairness Act (PWFA). The PWFA was passed into law on June 27, 2023, and requires all employers with 15 or more employees to provide, like the Americans with Disabilities Act (ADA), reasonable accommodations to otherwise qualified employees and applicants who have limitations related to pregnancy or childbirth, unless the employer can prove an undue hardship. The EEOC was asked to publish these regulations in December, but that release was delayed until Monday. These regulations will be published Thursday, April 19 and will take effect in mi-June, 60 days following their publication.
In reviewing these final regulations, the EEOC relied heavily on the concepts contained in the ADA. Employers will be required, by the PWFA, to give reasonable accommodations to employees who cannot perform the essential functions of their job unless there is an undue hardship presented during an interactive process between the employer and the employee. That said, there are key differences between the PWFA and the ADA as expected.
The PWFA defines a qualified employee as both an employee or an applicant who is able to perform the essential function of her job with or without a reasonable accommodation. This is very ADA-like. However, an alternate definition is included which states that an employee or applicant may be qualified even if they cannot perform one or more of the essential functions of her job if the inability to perform the essential function is temporary, the employee will be able to resume the essential function in the near future and the inability to perform the essential function can be reasonably accommodated.
The EEOC states that “temporary” means “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” For “current pregnancy,” the final rule presumes “in the near future” to mean an employee could perform the essential functions within 40 weeks of the accommodation being granted. For non-pregnancy covered conditions (fertility treatments, etc.), the EEOC did not adopt any clear definition of the term “in the near future,” but, like the ADA, stated that an employer is not expected to grant indefinite leaves or indefinite suspension of duties. These regulations cover a wide range of conditions related to pregnancy — fertility and infertility treatments, menstruation, postpartum depression and miscarriages. However, the final regulations also clarify that time for bonding or childcare is not covered by the PWFA.
The reasonable accommodations discussion in the final regulations will look very familiar to any employer with extensive ADA experience and include modified job duties and modified job descriptions, remote work, modified schedules, time off for appointments, additional breaks, special parking and, as stated above, unpaid leave. As with the ADA, employers will be expected to provide accommodations which can be granted with ease and very little effort, and claiming undue hardship when presented with easy accommodations would be risky. In general, accommodations would create an undue hardship if it would cause significant difficulty or expense for operations.
These regulations confirm that the PWFA does not replace any other federal or state law that are more protective of pregnant employees. Ohio, like more than half of the states, already has laws protecting pregnant workers; however, the PWFA provides more protection than Ohio law. At this time, it is recommended that, if you did not do so in June 2023 when the PWFAA was passed, review your processes and procedures when presented with issues from pregnant employees; train human resources professionals and, if necessary, front-line supervisors to identify and correctly handle the issues related to PWFA. Employers should contact KWGD or your counsel before denying accommodation requests or making any employment related decision under the PWFA until you are familiar with and understand your obligations under the PWFA.
If you have any questions about the PWFA please contact Michael Bogdan or any member of the KWGD Labor and Employment Section.
Michael J. Bogdan, Esq.
330-497-0700
mbogdan@kwgd.com