Labor & Employment Alert: The Pregnant Workers Fairness Act - A Closer Look, as the Date for Implementation Approaches

 In January, we gave you a general outline of the new “Pregnant Workers Fairness Act,” which Congress enacted in December 2022, embedded within the Appropriations bill. This law formally takes effect on June 27, and the Equal Employment Opportunity Commission (EEOC) has announced that it will begin accepting violation complaints beginning that day. 

The law also instructs the EEOC to issue federal regulations (by December 2023), disclosing how it interprets and intends to enforce the provisions of this new law, and including examples of the kinds of accommodations the Commission would consider “reasonable.” While it has been reported that the Commission is already working on them, unfortunately, we don’t really know whether we will even see a draft of its intentions before the law is triggered in June. So, it may be prudent to anticipate the Commission’s expectations and start preparing for these requests to surface. Here's what we can tell you at this point.

 

What was the motivation for this new law?

Primarily, the reason for concern among employers is that the way of thinking about day-to-day pregnancy issues in the workplace has now been fundamentally altered. 

Traditionally, pregnancy claims were part of “sex discrimination” claims – and the initial focus was always on whether a pregnant female worker was actually treated differently than some comparator male employee – not always an easy argument to make given that men-comparators were not pregnant. Pregnant employees also had the potential to claim that their particular pregnant condition (e.g., gestational diabetes as compared with, say, a need to drink water at work) rendered them “disabled,” and thus, could claim that the Americans with Disabilities Act entitled them to “reasonable accommodations” at work; but, here, given that the pregnancy was “temporary” in nature, in many cases it could be argued that the impairment did not meet the legal definition of a “disability.” So long as the state of being pregnant was not considered a “disability” in and of itself, there was an ongoing potential that impairments relating to the pregnancy would not be protected by the ADA.

The new Act is intended to dispense with all the “loopholes.” The new law makes it unlawful for an employer not to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee. And “known limitation” means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. So, there no longer needs to be a debate about whether a female employee is being treated in a way that is different from the treatment of men. Nor is there any longer any reason to evaluate whether, in being pregnant, an employee is disabled, or has some condition that meets the traditional characteristics of a “disability.” A pregnant employee now simply has the right, by that fact alone, to request accommodations in the workplace made necessary by a physical or mental condition that arises in connection with that pregnancy.

What is the practical impact of the new law on operations?

As a practical matter, this new law means that Human Resources professionals will now have to approach a request for a pregnancy accommodation similar to the traditional handling of an ADA request:

  

 

• The process is typically triggered by the employee disclosing her situation and making an affirmative request for help. (Management normally does not assume that the employee has limitations and does not take the initiative for imposing some “accommodation” unilaterally.)

• The employee typically provides medical documentation that supports the employee’s condition and the need for an accommodation. But, being highly technical is not going to be encouraged – for example, if an employee is obviously pregnant, and asks to be permitted to drink water as she works. Bear in mind that part of the motivation for enacting this law was to assure that inconsequential requests with minimal cost to an employer not be arbitrarily denied.

• Management and the employee engage in an “interactive process” to assess whether the requested accommodation will be mutually beneficial and/or whether other alternatives may be preferable.

• A leave of absence may be an appropriate accommodation. Note that an employer cannot unilaterally impose that alternative on an employee without having reached that decision through the interactive process. Note also that, when leave is being requested by the employee, the employer will not be able to rely on hard-and-fast attendance or leave of absence rules that it may normally apply to others as the sole excuse for denying a leave to a pregnant employee.

• As with ADA requests, the boundaries of a requested accommodation still include the notion that the employer is not required to accept an “undue hardship” in the operation of the business.

• Unlike the ADA, which accepts that the disabled employee may be held to performance of the “essential functions” of the job, in this case, the law says that the essential functions of a job may be waived if it is only done as a temporary fix, and if doing so can still be reasonably accommodated.

Who does this apply to?

Any employer with at least 15 employees.

What should employers be doing to prepare for this?

1. Review your existing employee handbooks and personnel policies. You should be inserting language that includes wording that alerts the employees that you will honor these rights; and look for language that may imply otherwise. Wording should be broad enough to anticipate the possibility that leave would be considered, even where sick leave or FMLA leave has been exhausted. You do not want an employee to be able to claim that they didn’t try to exercise their rights because the handbook didn’t tell her that she could, or how to do it.
       
2. Train HR professionals and managers.

    a. Everyone involved needs to understand that the ground rules have changed. Employees will have rights they did not have before; likely, more employees will be asking for more accommodations. Managers need to be open to that possibility.

    b. Establish a clear understanding/protocol as to how requests are going to be processed/considered/approved. 

• You will want to encourage employees to come forward with their requests so that they can be addressed, and, you will want to document that each request has been handled appropriately.
• Will there be a form, and formal action taken? 
• Must HR be involved? 
• Managers also need to be aware that an employee may not actually use “magic words” to formally request a “reasonable accommodation.” Any comment suggesting that the employee is having a problem performing duties that may be implicated by a pregnancy should be noted, and an employee can be referred to HR to at least discuss the situation.
• An accommodation approved by one manager for one department could be setting a precedent that a manager in the next department opposes, and, if there is not central oversight, there can be multiple practices in the same facility. Worse yet is a scenario in which a manager approves a request, and HR wants to change it after the fact. So, will a manager have unilateral authority to approve requests? 
• These steps should be thought through before the first request comes in.

    c. Managers must keep control over anything that falls into the category of “harassment” of employees asking for the accommodations. With the passing of time, some employees may see these individuals as getting paid to do less work or receiving other “special treatment.” If that spills over into making comments to, or about, the pregnant employee, or other antagonistic conduct, managers need to react immediately, and HR needs to be involved.

    d. Everyone involved needs to fully appreciate that neither pregnancy, nor requests for accommodation, may be the basis for any retaliation, be that in hiring, evaluation, or otherwise.

3. Watch for a new Poster: No official poster has been issued, but we anticipate that the standard “Know Your Rights: Workplace Discrimination is Illegal” poster will be reissued to include language covering the new law.

What are examples of “impairments” relating to pregnancy that could be the basis for a requested accommodation?

Examples reported in previous litigation include:

• “high risk” pregnancy
• preeclampsia
• cervical insufficiency
• separation anxiety
• postpartum depression
• pregnancy-related anemia
• pregnancy-related sciatica
• pregnancy-related carpal tunnel syndrome
• gestational diabetes
• severe dehydration
• abnormal heart rhythms
• swelling, especially in the legs
• pelvic inflammation
• symphysis pubis dysfunction
• complications from breech presentation
• other medical conditions which become exacerbated due to changing medication regimen as a result of pregnancy

Note that conditions that arise during the pregnancy or following delivery may all be eligible for consideration for accommodation.

What are some examples of the kinds of accommodations we should anticipate?

As with ADA requests, anticipate that, first and foremost, the employee will be requesting/suggesting an accommodation that addresses whatever the “problem” is that she is experiencing at work. Cases that have been litigated previously have involved consideration of things like the following, many of which involve little or no monetary cost:

• ability to sit down at work
• ability to drink water at work
• access to close-in parking
• uniforms/safety apparel to accommodate changed body proportions
• lifting restrictions
• excused from strenuous restrictions
• avoiding exposure to chemicals that could threaten pregnancy
• not working in the sun/heat/cold (e.g., temporarily working inside for what is normally an outside job)
• “light duty”
• additional break time for bathroom/eating/resting
• reassigning some functions/duties of the job description
• changing how some functions are performed
• changed shift
• reduced shift
• changed start or stop time
• work from home
• allowing time off for treatment
• leave of absence
• modifying or acquiring new equipment
• allowing a new hire to delay start date

As with ADA accommodations, the employee’s request may be the jumping off point for a discussion, in which the employer suggests alternatives or nuances to the request.

What about an employee who asks for pregnancy leave, who is not entitled to any “normal” company leave, or who has already used the leave that is available?

First, you should know that the Ohio Civil Rights Commission has long taken the position that, if an employer either offers no “sick leave” or insufficient sick leave to accommodate an employee’s pregnancy, then, nevertheless, childbearing must be considered by the employer to be a justification for a leave of absence for a female employee for a “reasonable” period of time. Regardless, the EEOC will now start from the position that, FMLA or standard sick leave is only a starting point. An employer will not be permitted to simply state that, there is no leave available, or that the available leave was exhausted. The focus going forward will be whether granting additional leave for an eligible purpose is reasonable under the circumstances. 

Courts have considered reasonable accommodation situations in the past, for example, when a pregnancy coincided with a recognized disability. The Federal Court of Appeals covering Ohio has taken the position that there is no “bright-line rule” that it recognizes, to determine that a certain number of months, or weeks, or days is categorically “enough” to allow for a pregnancy-related leave. Cases have also been reported in which a leave was approved and in which an employee requested an additional leave – while courts accept the notion that “indefinite” leave is not required, the time limit is really a function of how much leave has already been granted, how much more is requested, whether there is some definiteness that a further, finite date will be sufficient for the employee’s return to work, and whether the employer can demonstrate an “undue hardship” on its operations (a notion that may expand or contract, depending upon the size and circumstances of the operation).

Beyond the “letter of the law,” the following have previously been identified as “best practices” (i.e., not necessarily legally required in all cases) by the EEOC in dealing with pregnancy-related issues; and they may be beneficial to consider at this point, while we wait for more definitive regulations:

General

• Develop, disseminate, and enforce a strong policy based on the requirements of the federal law.
  • Make sure the policy addresses the types of conduct that could constitute unlawful discrimination based on pregnancy, childbirth, and related medical conditions.
  • Ensure that the policy provides multiple avenues of complaint.
• Train managers and employees regularly about their rights and responsibilities related to pregnancy, childbirth, and related medical conditions.
  • Review relevant federal, state, and local laws and regulations, as well as relevant employer policies.
• Conduct employee surveys and review employment policies and practices to identify and correct any policies or practices that may disadvantage women affected by pregnancy, childbirth, or related medical conditions or that may perpetuate the effects of historical discrimination in the organization.
• Respond to pregnancy discrimination complaints efficiently and effectively. Investigate complaints promptly and thoroughly. Take corrective action and implement corrective and preventive measures as necessary to resolve the situation and prevent problems from arising in the future.
• Protect applicants and employees from retaliation. Provide clear and credible assurances that if applicants or employees internally or externally report discrimination or provide information related to discrimination based on pregnancy, childbirth, or related medical conditions, the employer will protect them from retaliation. Ensure that these anti-retaliation measures are enforced.

Hiring, Promotion, and Other Employment Decisions

• Focus on the applicant’s or employee’s qualifications for the job in question. Do not ask questions about the applicant’s or employee’s pregnancy status, children, plans to start a family, or other related issues during interviews or performance reviews.
• Develop specific, jobrelated qualification standards for each position that reflect the duties, functions, and competencies of the position and minimize the potential for gender stereotyping and for discrimination on the basis of pregnancy, childbirth, or related medical conditions. Make sure these standards are consistently applied when choosing among candidates.
• Ensure that job openings, acting positions, and promotions are communicated to all eligible employees.
• Make hiring, promotion, and other employment decisions without regard to stereotypes or assumptions about women affected by pregnancy, childbirth, or related medical conditions.
• When reviewing and comparing applicants' or employees' work histories for hiring or promotional purposes, focus on work experience and accomplishments, and give the same weight to cumulative relevant experience that would be given to workers with uninterrupted service.
• Make sure employment decisions are well documented and, to the extent feasible, are explained to affected persons. Make sure managers maintain records for at least the statutorily required periods.
• Disclose information about fetal hazards to applicants and employees, and accommodate resulting requests for reassignment if feasible.

Leave and Other Fringe Benefits

• Leave related to pregnancy, childbirth, or related conditions can be limited to women affected by those conditions. Parental leave must be provided to similarly situated men and women on the same terms.
• If there is a restrictive leave policy (such as restricted leave during a probationary period), evaluate whether it disproportionately impacts pregnant workers and, if so, whether it is necessary for business operations. Ensure that the policy notes that an employee may qualify for leave as a reasonable accommodation.
• Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary for business operations.
• Consult with employees who plan to take pregnancy and/or parental leave in order to determine how their job responsibilities will be handled in their absence.
• Ensure that employees who are on leaves of absence due to pregnancy, childbirth, or related medical conditions have access to training, if desired, while out of the workplace.

Terms and Conditions of Employment

• Monitor compensation practices and performance appraisal systems for patterns of potential discrimination based on pregnancy, childbirth, or related medical conditions. Ensure that compensation practices and performance appraisals are based on employees' actual job performance and not on stereotypes about these conditions.
• Review any light duty policies. Ensure light duty policies are structured so as to provide pregnant employees access to light duty equal to that provided to people with similar limitations on their ability to work.
• Temporarily reassign job duties that employees are unable to perform because of pregnancy or related medical conditions if feasible.
• Protect against unlawful harassment. Adopt and disseminate a strong anti-harassment policy that incorporates information about pregnancy-related harassment; periodically train employees and managers on the policy's contents and procedures; incorporate into the policy and training information about harassment of breastfeeding employees; vigorously enforce the anti-harassment policy.
• Develop the potential of employees, supervisors, and executives without regard to pregnancy, childbirth, or related medical conditions.
• Provide training to all workers, including those affected by pregnancy or related medical conditions, so all have the information necessary to perform their jobs well.
• Ensure that employees are given equal opportunity to participate in complex or high-profile work assignments that will enhance their skills and experience, and help them ascend to upper-level positions.
• Provide employees with equal access to workplace networks to facilitate the development of professional relationships and the exchange of ideas and information.

Reasonable Accommodation

• Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related disabilities, and for granting accommodations where appropriate.
• State explicitly in any written reasonable accommodation policy that reasonable accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy.
• Make any written reasonable accommodation procedures an employer may have widely available to all employees, and periodically remind employees that the employer will provide reasonable accommodations to employees with disabilities who need them, absent undue hardship.
• Train managers to recognize requests for reasonable accommodation and to respond promptly to all requests.
• If a particular accommodation requested by an employee cannot be provided, explain why, and offer to discuss the possibility of providing an alternative accommodation.

This new federal law to protect pregnant workers goes into effect June 27^th, and no doubt there will be a lot of publicity before the lead up. It would be prudent for employers not to wait, and to begin implementing policies and strategies for compliance now.