NOTE FROM ROBIN: It's been a busy week in the world of employment regulation. Before you read on about the PWFA regulations, you will want to check out this bulletin by Jackie Johnson and Jon Persky about the Federal Trade Commission rule that will outlaw almost all covenants not to compete between employers and employees. At least two lawsuits have already been filed challenging the rule, including one by the U.S. Chamber of Commerce. Information about the other lawsuit, which had been filed before publication, is in the bulletin.

You'll also want to read this bulletin from Jim Coleman and Ellen Kearns about the new salary thresholds for white-collar exemptions and highly compensated employees under the Fair Labor Standards Act.

Go ahead. We'll wait. Back now? OK!

Last Friday, the Equal Employment Opportunity Commission published its final regulations on the Pregnant Workers Fairness Act. The regulations are to take effect on June 18, just under a year since the PWFA itself took effect.

The PWFA amends Title VII to require employers to make reasonable accommodation for pregnancy and pregnancy-related conditions for "qualified" employees unless doing so would be an undue hardship. Before the law took effect in June 2023, Title VII prohibited discrimination based on pregnancy but arguably did not require reasonable accommodations in most cases.

Although the Americans with Disabilities Act requires reasonable accommodations for employees with disabilities, many pregnancy-related limitations are not “disabilities” within the meaning of the ADA.

The regulations – including the preamble, the regs themselves, and an “Interpretive Guidance Appendix” – are vast. Unfortunately, just following what you’ve always done with disability-related accommodations is not going to work in many instances.

What conditions are covered?

Actual pregnancy, of course, but also trying to get pregnant (including in vitro fertilization), termination of pregnancy (including contraception, miscarriage, stillbirth, and abortion), childbirth and the postpartum period, and lactation. And even this list is misleadingly conservative. Just about any physical or mental condition with any relationship to pregnancy is considered a pregnancy-related condition. This also includes preexisting medical conditions that may be exacerbated by pregnancy or childbirth.

Unlike the ADA, the pregnancy-related condition can be short-term and relatively mild, including morning sickness in the first trimester, swollen ankles, you name it.

Is there anything the law does not apply to?

Medical conditions that are not pregnancy-related are not covered. (Unless the conditions have pregnancy-related consequences.) In addition, only the pregnant employee is entitled to accommodation. Spouses requesting accommodation for their own “sympathy pains” or stress, and employees who want accommodations to bond with the baby, or for child care needs, are not entitled to reasonable accommodation under the PWFA.

What is a “reasonable accommodation” under the PWFA?

The definition of “reasonable accommodation” in the PWFA is very similar to the ADA definition. But there are some important differences:

To start the process, the employee or her representative has to inform the employer (or confirm) that she has a pregnancy-related condition that requires accommodation. The “representative” could be a family member, friend, health care provider, union representative, or other appropriate person. The employer cannot require that the request be submitted on a form and cannot require the employee to undergo a pregnancy test (duh). The communication can be informal, and no “magic words” have to be used. Generally, the “employer” would be notified if the employee or her representative notified anyone from the supervisor level up.

The employer may or may not be able to request documentation from a health care provider (see next FAQ – this is not as straightforward as it sounds).

The employer and the employee should engage in the “interactive process,” which means roughly the same thing that it means under the Americans with Disabilities Act. No formal steps need to be followed, and sometimes this interactive discussion will be very brief, as in, “Can I use a stool because my ankles swell up when I stand for more than half an hour?” “No problem. Here you go.” Of course, in other cases, the discussions could easily be more involved.

The employer may not require an employee to accept an accommodation that was not arrived at through the interactive process. However, the EEOC says that the failure to engage in the interactive process is not a per se violation of the PWFA. In my opinion, this statement is confusing and misleading because it is unlawful for the employer to do any of the following without having engaged in the interactive process:

• Require an employee to take a leave of absence as a reasonable accommodation.
• Require an employee to accept light duty as a reasonable accommodation.
• Require an employee to accept any accommodation.
• Choose the employer’s preference of accommodation, even if that accommodation is effective.
• Fail to accommodate an employee if an effective accommodation was available that was not an undue hardship.

Thus, failure to engage in the interactive process might as well be a per se violation of the PWFA, and employers should consider it that way.

In contrast to the ADA, the employer may have to “temporarily” suspend one or more essential functions of the position if the employee will be able to perform that function “in the near future.” The EEOC says “in the near future” is determined on a case-by-case basis, but it could be as much as 40 weeks during pregnancy (the length of a term pregnancy), and then another 40 weeks after the employee returns from maternity leave.

The PUMP for Nursing Mothers Act requires employers to provide a clean, well-appointed space and breaks for mothers to express milk during the workday. These obligations are in effect for 12 months after the birth of the baby. The PWFA regulations impose these obligations on employers who are not covered by the PUMP Act, and possibly beyond the 12-month limit in the PUMP Act.

As with the ADA, if an employee refuses an effective reasonable accommodation, then she is no longer “qualified.”

A few reasonable accommodation “don’ts.” It is unlawful for an employer to

• Require an employee to accept a reasonable accommodation if she doesn’t want one.
• Have a blanket rule that applies to pregnant employees – for example, banning business travel during the third trimester.
• Discriminate based on the possibility of maternity leave, or the possibility that there will be a need to accommodate pregnancy-related conditions in the future. (The ADA has a similar provision.)

What kind of documentation can an employer request?

Unless the pregnancy is obvious and the employee self-confirms the pregnancy, the employer can request documentation confirming that the employee is pregnant.

The employer can also request documentation confirming that some other medical condition is pregnancy-related.

The employer can request documentation that describes the adjustments to the employee’s job duties or work environment that are needed, including an estimate of the length of time that the adjustments may have to be in place.

The employer has the right to request that this documentation come from a health care provider.

That’s the good news. There is also a great deal of bad news for employers.

First, my use of the word “confirm” means exactly that. All the employer has a right to request is “confirmation” of the pregnancy or that the employee’s medical condition is pregnancy-related. Yes or no. No details. The employer cannot require the employee to complete a form for this purpose.

Second, although the employer can require that the documentation come from a health care provider, that individual does not have to be the employee’s treating provider. Employers are also not allowed to require the employee to go to a health care provider of the employer’s choice.

Third, the EEOC has a list of what it calls “Predictable Assessments.” Very unhelpful nomenclature, in my opinion, but these are workplace accommodations that the EEOC says will almost never be an undue hardship for the employer and for which documentation can almost never be sought. The following are “Predictable Assessments”:

• Allowing the employee to carry or keep drinking water nearby.
• Allowing the employee to take extra bathroom breaks.
• Allowing the employee to sit (if in a standing job) or to stand (if in a sitting job).
• Allowing the employee to take extra breaks for eating or drinking.

If the employee self-confirms her pregnancy and needs a “predictable assessment” accommodation, then the employer will almost always have to grant the accommodation without seeking documentation. The same principle also applies to lactation accommodation – either to pump, or, if the baby is in “close proximity” to the work location (perhaps in an onsite day care center), to nurse the baby.

Fourth, the employer may not request documentation if it grants the same type of accommodation to non-pregnant employees without requiring documentation.

Fifth, the documentation itself must be “reasonable.” Reasonable, as noted above, is the bare minimum required to confirm the pregnancy or that the condition is related to pregnancy, and to describe the accommodations needed and approximate duration. Employers are not allowed to insist on completion of their own forms for this purpose (presumably, this is the case even if the forms comply with the “bare-bones” requirements in the regulations).

Sixth, if the condition is episodic (for example, migraine headaches), the employer may not request documentation related to each episode, but only for confirmation of the condition and that it is pregnancy-related.

Seventh, the employer may not request documentation related to lactation needs (a private space, breaks for pumping or nursing, etc.). There is an exception when the employee’s need is not obvious. The EEOC uses the example of an employee who requests full-time remote work because she has a medical condition that makes pumping difficult. In a situation like this, the employer can request documentation.  

A final word about documentation, and it’s important: Many employers have developed forms related to requests for reasonable accommodation under the ADA and other disability rights laws. Under the PWFA regulations, you will not be allowed to “recycle” these forms for use when employees request pregnancy-related accommodations. Even if you make use of forms optional, which is legal, do not use your existing ADA accommodation forms because they may ask for information that you are not legally allowed to ask for under the PWFA. You will need to create a separate set of pregnancy-accommodation forms.

Which brings us to our next FAQ . . .

What are unlawful acts under the PWFA?

Some are obvious, and some are not so obvious. Here they are:

First, refusing or failing to accommodate pregnancy or a related condition unless doing so would be an undue hardship.

Second, unnecessary delays in providing pregnancy-related accommodations. In the case of a delay, the EEOC will take the following into account in determining whether the delay was “unnecessary”:

• The reason for the delay.
• The length of delay.
• The length of time that the accommodation was needed (the shorter the period of accommodation, the more likely the delay will be found to have been “unnecessary”).
• The relative contributions of the employer and the employee in causing the delay.
• Whether the employee was “engaged in actions related to the reasonable accommodation request during the delay.”
• Whether providing the requested accommodation would be “simple,” or “complex” (again, “predictable assessment” accommodations would almost never justify a delay).
• Whether the employee was offered an interim accommodation during the period of delay.

Interim accommodations are strongly encouraged by the EEOC if an employer needs time to consider accommodation options, or needs time to put the requested accommodation in place (for example, if equipment has to be special ordered). The EEOC calls interim accommodations a “best practice.”

“Unnecessary delays” from a third-party administrator are attributable to the employer.

Third, denying a reasonable accommodation based on lack of supporting documentation unless

• The employer actually asked for the documentation.
• The documentation request was “reasonable.”
• The documentation itself was (or would have been) “reasonable.”
• The employer gave the employee enough time to produce the documentation.

If there is more than one effective accommodation, the employer should give the employee’s preference first consideration, but the ultimate decision is up to the employer. However, if one effective accommodation will let the employee continue to enjoy the same pay, performance, benefits, and privileges that similarly situated employees enjoy and the other accommodation does not, the employer has to go with the former. (Assuming neither is an undue hardship.)

Fourth, requiring the employee to accept any reasonable accommodation that was not arrived at through the interactive process.

Fifth, denying equal employment opportunity based on the employee’s need for a reasonable accommodation. For example, if an employee doesn’t meet the employer’s normal productivity criteria because of the accommodation that was granted, the employer cannot penalize her for that on her performance evaluations or with respect to opportunities or benefits that are based at least in part on performance-related criteria.

Sixth, requiring the employee to take a leave of absence – whether paid or unpaid – if a "working" reasonable accommodation would not be an undue hardship. However, if the employee asks to be placed on a leave of absence, then placing the employee on leave will not violate the law. The employer must put the employee back in her old job after her return from leave unless holding her job open would be an undue hardship. Also, any production standards should be pro-rated during the period of leave and not used against the employee in assessing her performance. Needless to say, she should not receive any attendance points or other negative actions based on the leave.

Seventh, taking adverse action against an employee based on a request for, or use of, reasonable accommodation. This could obviously be retaliation, and it can also be unlawful “coercion,” which applies even to adverse actions that are not “material.”

How does the PWFA interact with the ADA, or with other laws?

The “medical inquiry” and “confidentiality” provisions of the ADA apply to all information related to pregnancy and pregnancy-related accommodation requests. In other words, it is a violation of the ADA for an employer to ask about an employee’s medical history, to ask the employee to complete a medical questionnaire, or to ask the employee to provide a medical release to her health care provider for her complete medical record. It also violates the ADA for an employer to ask about preexisting conditions and past requests for reasonable accommodation. The EEOC’s position is that these questions in the context of a request for pregnancy-related accommodation are not “job-related and consistent with business necessity.”

Any information obtained in connection with a request for pregnancy-related accommodation must be kept confidential, disclosed only as authorized under the ADA, and maintained separately from the employee’s personnel file. This is true even if the employee provided the information voluntarily. If the employer is required to disclose the information in some manner that is not specifically authorized under the ADA, then it must (1) inform the employee of its intent to disclose the information, (2) identify the reason for the disclosure, and (3) provide enough time for the employee to object to the disclosure.

If an employee who needs pregnancy-related accommodation also has a condition that qualifies as a disability under the ADA, the employer should first follow the law that makes it easier for the employee to get the accommodation. The same is true if a state pregnancy-accommodation law also applies, or another federal law.

As with the ADA, employers are not required to furnish personal equipment to pregnant employees as a reasonable accommodation. But if the personal equipment is also job-related, then the employer would have to provide it. The EEOC uses the example of a pregnancy pillow. If, for example, an employee in a manufacturing plant sleeps better at night with a pregnancy pillow, the employer is under no obligation to buy her one as a reasonable accommodation. On the other hand, if the employee is in a job where she has to sleep onsite – for example, a firefighter – then the pillow might have to be provided.

The PWFA does not preempt state pregnancy accommodation laws, or provisions in a collective bargaining agreement, that are more generous than the PWFA. Employers must also continue to comply with other federal laws that might come into play, such as the Occupational Safety and Health Act.

Does an employer have to provide light duty as a pregnancy-related accommodation?

Possibly. If the employer has a light duty program for employees with on-the-job injuries, it generally has to make light duty available to the pregnant employee as a reasonable accommodation, even though pregnancy is not job-related. However, as noted above, an employer cannot require an employee to go on light duty unless it first goes through the interactive process with the employee.

Anything else I need to know?

Of course! In no particular order,

• At the end of the actual regulations, the EEOC has provided a 30-page, small-print Interpretive Guidance Appendix that goes over the above points in more detail and also contains numerous examples.
• Once the employee’s pregnancy-related condition ends, the employer does not have to continue providing the reasonable accommodation, even if the employee wants it.
• For purposes of a retaliation claim, a request for accommodation is one form of “protected activity.” It’s not a defense that the employer’s adverse action did not actually deter the employee from engaging in protected activity.
• The PWFA also prohibits employer “coercion.” Generally, “coercion” is action that would tend to deter employees or applicants from exercising their rights under the PWFA. Coercion can include seeking documentation that isn’t “reasonable” (even if employee provides the documentation and gets the accommodation), and disclosing the employee’s confidential medical information. Coercion claims are not limited to the employee or applicant. Others may assert coercion claims.
• The PWFA does not require employer-sponsored health plans to pay for any particular medical procedure, and the EEOC specifically cites abortions as an example.

Hey, Robin, didn't you do a bulletin on this yesterday?

Yes, I did. But I'm running it again here in case some of our blog readers don't subscribe to our bulletins.

Do you have anything new to report since yesterday?

Indeed I do. The attorneys general in 17 states have already filed suit to stay the effective date of the Final Rule and to block enforcement in the states that have sued. The lawsuit, which primarily takes aim at the provisions requiring "abortion accommodation," is State of Tennessee (et al.) v. Equal Employment Opportunity Commission, pending in the U.S. District Court for the Eastern District of Arkansas. Here's a copy of the Complaint. 

The states suing over the regulations are, in alphabetical order, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.

The judge assigned to the case is an Obama appointee, so this may not necessarily end up like the many successful regulatory challenges brought in the federal courts of Texas. Texas is not a plaintiff in this lawsuit, so it's probably planning to do its own thing there. I wouldn't be surprised. As we reported in March, Texas has already managed to get a ruling prohibiting the enforcement of the PWFA against the state and its agencies.