By Pat Murphy, BridgeTower Media Newswires
Attorneys see the newly proposed rule to implement the federal Pregnant Workers Fairness Act as painting the employee’s right to a reasonable accommodation with a broad brush while maintaining a firm standard for the employer’s burden of showing that a particular request would constitute an undue hardship.
The U.S. Equal Employment Opportunity Commission announced the proposed rule Aug. 7. The publication of the rule in the Federal Register on Aug. 11 triggered a 60-day public comment period.
The EEOC’s notice of proposed rulemaking provides numerous examples of possible reasonable accommodations while explaining how the commission intends to interpret the PWFA and certain terms in the statute, such as “temporary,” “essential functions,” and “communicated to the employer.”
“The EEOC’s bipartisan proposed regulation helps to bring the promise of this transformative law to life, enabling pregnant and postpartum workers to retain their jobs while maintaining a healthy pregnancy and recovering from childbirth,” EEOC Vice Chair Jocelyn Samuels said in a statement.
Providence attorney Michael A. Gamboli maintains a multi-jurisdiction employment law practice, representing employers in both Rhode Island and Massachusetts. According to Gamboli, the federal PWFA is aimed at filling in the gaps in the protection of pregnant workers left open by Title VII, the Americans with Disabilities Act and other federal statutes.
“The scope and the breadth of what is covered and what you have to accommodate [under the PWFA] is expansive,” Gamboli says. “What employers need to understand is that, if an employee is pregnant, you have to accommodate their pregnancy, whatever the effects of [the accommodation] happen to be.”
Waltham, Massachusetts, attorney Amanda E. Thibodeau represents employers in both Massachusetts and New Hampshire.
“On the federal side, this is a big deal,” Thibodeau says. “It’s going to take some time for employers and employees to understand how these [rules] will operate in real life.”
President Joe Biden signed the PWFA into law on Dec. 29, 2022. The law went into effect on June 27, 2023, at which time the EEOC began accepting charges.
The statute requires covered employers to provide reasonable accommodations to a qualified employee’s “known limitations” related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”
“The way I read the PWFA is, it essentially does no more than say that pregnancy is now automatically a disability and that you have to accommodate it,” says Gamboli.
Under 42 U.S.C. §2000gg(2)(B)(i), the PWFA defines a “covered entity” as including employers engaged in industry affecting commerce with 15 or more employees.
Section §2000gg(4) defines the term “known limitation” as meaning a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer,” whether or not such condition meets the definition of disability under the ADA.
“There’s no definition under the ADA for ‘known limitation,’” says Thibodeau. “That’s totally brand new and something employers and employees are going to have to see how it works in practice.”
Under Section 42 U.S.C. §2000gg(6), a “qualified employee” includes not only an individual who, with or without reasonable accommodation, can perform the essential functions of the job. The statute further provides that a person may be “qualified” if: (1) any inability to perform an essential function is for a temporary period; (2) the essential function may be able to be performed in the near future; and (3) any inability to perform the essential function can be reasonably accommodated.
“I don’t believe this idea of putting essential functions aside is anything new. It happens all the time under the ADA,” Gamboli says. “However, it is not laid out as clearly in the ADA. The proposed regulations of the PWFA really go into detail.”
Boston employment attorney Monica R. Shah says the PWFA is “expansive” in that it recognizes that the nature of pregnancy is different from a disability as defined by the Americans with Disabilities Act.
“The statute recognizes what is important about pregnancy in that it can lead to conditions that are temporary — for example, the need for bedrest or the [inability] to carry a certain amount of weight for certain labor-intensive jobs — but which actually stop a pregnant person from doing the work,” the plaintiffs’ attorney says.
In limiting the reach of the PWFA with respect to state pregnancy discrimination laws, Section 2000gg-5(a) provides that nothing in the statute shall be construed “to invalidate or limit the powers, remedies, and procedures under any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions.”
According to Gamboli, in the majority of states the federal PWFA is not going to change the way employers do business.
“Massachusetts and Rhode Island already have the same protections in place, which are actually broader at least in terms of the scope of employers they apply to,” Gamboli says. “The federal statute applies if you have 15 or more employees. The Rhode Island statute applies if you have four or more employees. In Massachusetts, its six or more.”
But Thibodeau points out that the PWFA will have a profound impact in some states.
“There are a significant number of states that don’t have any protections for pregnant workers,” Thibodeau says. “This is a significant milestone for folks around the country.”
Gamboli says the regulations interpreting the Massachusetts and Rhode Island statutes aren’t nearly as well developed as the EEOC’s proposed regulation implementing the PWFA. For that reason, Gamboli says he foresees that the federal regulation in its final form will provide important guidance for interpretating state pregnancy discrimination statutes.
“It will offer some clarity on essential functions and undue hardship,” he says.
For companies with employees in states that don’t have robust protections for pregnant workers, Shah says the federal PWFA is an important milestone.
“Until now, [pregnant] workers had protection against discrimination in hiring and with respect to other employment decisions in the workplace, but they were not entitled to these [reasonable accommodation rights] that were given on a national basis for pregnant workers [under the federal PWFA],” she says.
Shah says that many of the cases she has taken on recently involve failure to accommodate issues like breastfeeding or postpartum depression upon return from pregnancy leave.
“Those conditions would all be covered under the federal law,” says Shah. “The fact that the [federal statute] is more about pregnant workers and less about having to prove a medical disability I hope will enable workers to feel that they can come forward, request the accommodations and feel comfortable doing so with the strong anti-retaliation provisions that are in the law.”
The PWFA’s anti-retaliation provision, §2000gg-2(f), prohibits both discrimination against an employee because they opposed an unlawful practice as well as coercion or intimidation of an individual that “aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.”
The EEOC’s proposed rulemaking would add Part 1636 in amending 29 C.F.R. Chapter XIV.
Section 1636.3 of the proposed regulation elaborates on the definition of “known limitation,” explaining that “known” means that the limitation is communicated by the employee or their representative to the employer, and “limitation” as meaning a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” including conditions which may be “modest, minor, and/or episodic.”
Shah notes that the proposed PWFA rule marks a departure from the ADA in the sense that the ADA requires that a disability needs to substantially limit one or more life activities.
“Obviously, there are pregnancy-related conditions that could qualify as a disability under the ADA, but under the PWFA you don’t have to meet that standard,” she says. “You simply need to meet that standard of showing that the condition is related to pregnancy.”
Thibodeau sees the discarding of the severity requirement under the proposed PWFA rule as a significant change.
“The statute will even apply to healthy and uncomplicated pregnancies,” she says.
The proposed regulation also makes clear that a medical condition relating to childbirth or pregnancy includes a wide range of conditions, including fertility treatment, postpartum depression, frequent urination, the use of birth control and lactation.
Meanwhile, §1636.3(i) of the proposed regulation provides a non-exhaustive list of reasonable accommodations that may be required of an employer, including job restructuring, part-time or modified work schedules, reassignment to a vacant position, extra work breaks, providing devices to help with lifting, and providing seating for jobs that require standing.
Section 1636.3(j) of the proposed rule provides detailed guidelines for assessing undue hardship under the PWFA. The rule defines undue hardship as meaning “significant difficulty or expense incurred” by the employer in terms of providing an accommodation, weighing factors such as the cost, the financial resources of the employer and the impact of an accommodation on the company’s operations.
Section 1636.4(a)(1) makes clear that an “unnecessary delay” in responding to a reasonable accommodation request may result in a violation of the PWFA.
Notably, §1636.4(a)(3) of the proposed rule states that a covered entity “cannot justify the denial or delay of a reasonable accommodation based on an employee or applicant failing to provide supporting documentation, unless requiring the supporting documentation is reasonable under the circumstances for the covered entity to determine whether to provide the accommodation.”