Accommodations may be as simple as access to water during the workday and additional bathroom breaks. Image: Andy Dean Photography/Shutterstock.com
By: FEDweek StaffFollowing are key provisions of proposed EEOC rules to carry out the Pregnant Workers Fairness Act, which took effect in June describing obligations of both employers and employees.
That law requires a “covered entity”—including a federal agency–to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.
Like the ADA [Americans with Disabilities Act], the PWFA does not require a covered entity to provide a reasonable accommodation that would cause undue hardship. A covered entity may therefore lawfully deny any requested accommodation that would impose significant difficulty or expense on its operations, as defined under the ADA.
. . . the types of reasonable accommodations that a worker may seek under the PWFA include, but are not limited to: job restructuring; part-time or modified work schedules; more frequent breaks; acquisition or modification of equipment, uniforms, or devices; allowing seating for jobs that require standing or standing in jobs that require sitting; appropriate adjustment or modification of examinations or policies; permitting the use of paid leave (whether accrued, short-term disability or another type of employer benefit) or providing unpaid leave, including to attend health care related appointments and to recover from childbirth; assignment to light duty;20 telework; and accommodating a worker’s inability to perform one or more essential functions of a job by temporarily suspending the requirement that the employee perform that function, if the inability to perform the essential function is temporary and the worker could perform the essential function in the near future.
. . . While there are not data regarding the costs of accommodations under the PWFA, there are data regarding the costs of accommodations under the ADA, which show that most accommodations are low or no cost . . . Moreover, given the nature of the accommodations required by the PWFA, virtually all will be temporary. Given these facts and the cost data from accommodations under the ADA, the actual costs an employer may face will likely be temporary and low.
Most of the PWFA’s provisions will be familiar to covered entities because the PWFA borrows intentionally and extensively from existing civil rights laws, both in describing coverage and in imposing requirements. For example, the PWFA incorporates Title VII’s definition of “employer,” and Title VII’s enforcement procedures. The PWFA borrows the definition of “reasonable accommodation” and “undue hardship” from the ADA and uses the same interactive process as is commonly used under the ADA. By borrowing language and concepts from Title VII and the ADA, the PWFA allows employers to build on existing policies and processes.
Voluntary Compliance Is Critical for the PWFA
As with other civil rights laws, voluntary compliance is critical to the success of the PWFA. If a worker quits their job because they do not receive an accommodation, it is of little use to that worker that years later they are able to establish through litigation that they should have received an accommodation. Voluntary compliance should be the norm because, while the form of reasonable accommodation will vary depending on the job and the worker’s needs, the accommodations that most workers will seek likely will be no cost to low cost and may be as simple as access to water during the workday, additional bathroom breaks, or sitting or standing.
Thus, participation in a good faith interactive process to quickly find an accommodation once it is requested is key, both for workers who need accommodations and for employers who need to keep workers on the job and avoid litigation costs.
Communication between workers and covered entities is the key to voluntary compliance. As set out in the proposed regulations, employees and applicants have the responsibility of asking for an accommodation. In doing so, they do not need to mention the PWFA, say any specific phrases, or use medical terms, and the request does not have to be in writing. Rather, the worker can communicate (or have someone communicate on their behalf) that the worker has a limitation that is related to pregnancy, childbirth, or related medical conditions and the need for an adjustment or change at work. Because the statute and the regulations emphasize employee notice that is simple and straightforward, and need not be in writing, covered entities should train first-line supervisors to recognize such requests as requests for accommodations and to act on them accordingly.
Once the need for an accommodation has been communicated, the covered entity must respond to the request. If the need is straightforward and can be easily accommodated (e.g., providing a stool for a pregnant cashier, or allowing a pregnant worker to carry a bottle of water with them and to drink as needed), the entity should act quickly and provide the accommodation.
If the entity has questions or wants to explore different reasonable accommodations, the covered entity and the employee can engage in the interactive process by, for example, having an informal conversation about the employee’s needs and possible accommodations. For accommodations that require more information, the entity may need to analyze the essential functions of the job and may, when necessary and permitted under the proposed PWFA rules described below, request reasonable medical documentation. In general, these steps should be familiar to covered entities, as they are similar to the reasonable accommodation provisions, including the interactive process, of the ADA.
Importantly, the physical or mental condition leading the worker to seek an accommodation can be a modest, minor, and/or episodic problem or impediment: there is no threshold of severity required under the PWFA. This is to ensure that employees and applicants, including those with uncomplicated pregnancies, have access to accommodations and that accommodations are available in order for workers to maintain their health or the health of their pregnancies. A severity threshold is not supported by the text of the PWFA and would frustrate the purposes of the Act.
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