Proposed Rule2023-17041
Regulations To Implement the Pregnant Workers Fairness Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 11, 2023
Issuing agencies
Equal Employment Opportunity Commission
Abstract
The Equal Employment Opportunity Commission is issuing a proposed rule to implement the Pregnant Workers Fairness Act, which requires a covered entity 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.
Full Text
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<title>Federal Register, Volume 88 Issue 154 (Friday, August 11, 2023)</title>
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[Federal Register Volume 88, Number 154 (Friday, August 11, 2023)]
[Proposed Rules]
[Pages 54714-54794]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17041]
[[Page 54713]]
Vol. 88
Friday,
No. 154
August 11, 2023
Part II
Equal Employment Opportunity Commission
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29 CFR Part 1636
Regulations To Implement the Pregnant Workers Fairness Act; Proposed
Rule
Federal Register / Vol. 88 , No. 154 / Friday, August 11, 2023 /
Proposed Rules
[[Page 54714]]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1636
RIN 3046-AB30
Regulations To Implement the Pregnant Workers Fairness Act
AGENCY: Equal Employment Opportunity Commission.
ACTION: Proposed rule.
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SUMMARY: The Equal Employment Opportunity Commission is issuing a
proposed rule to implement the Pregnant Workers Fairness Act, which
requires a covered entity 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.
DATES: Comments regarding this proposal must be received by the
Commission on or before October 10, 2023. Please see the sections below
entitled ADDRESSES and SUPPLEMENTARY INFORMATION for additional
information on submitting comments.
ADDRESSES: You may submit comments, identified by RIN number 3046-AB30,
by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Fax: 202-663-4114. Only comments of six or fewer pages
will be accepted via FAX transmittal, in order to assure access to the
equipment. Receipt of FAX transmittals will not be acknowledged, except
that the sender may request confirmation of receipt by calling the
Executive Secretariat staff at 202-921-2815 (voice), 1-800-669-6820
(TTY), or 1-844-234-5122 (ASL video phone).
<bullet> Mail: Raymond Windmiller, Executive Officer, Executive
Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street
NE, Washington, DC 20507.
<bullet> Hand Delivery/Courier: Raymond Windmiller, Executive
Officer, Executive Secretariat, U.S. Equal Employment Opportunity
Commission, 131 M Street NE, Washington, DC 20507.
Instructions: The Commission invites comments from all interested
parties. All comment submissions must include the agency name and
docket number or the Regulatory Information Number (RIN) for this
rulemaking. Comments need be submitted in only one of the above-listed
formats. All comments received will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information you provide.
However, the EEOC reserves the right to refrain from posting libelous
or otherwise inappropriate comments, including those that contain
obscene, indecent, or profane language; that contain threats or
defamatory statements; that contain hate speech directed at race,
color, sex, national origin, age, religion, disability, or genetic
information; or that promote or endorse services or products.
Docket: For access to the docket to read background documents or
comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and search for
``EEOC'' and ``RIN 3046-AB30.'' The received comments also will be
available for review at the Commission's library, 131 M Street NE,
Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and
5 p.m., from October 10, 2023 until the Commission publishes the rule
in final form.
FOR FURTHER INFORMATION CONTACT: Sharyn Tejani, Associate Legal
Counsel, <a href="/cdn-cgi/l/email-protection#1e6d767f6c6770306a7b747f70775e7b7b717d30797168"><span class="__cf_email__" data-cfemail="e093888192998ece94858a818e89a085858f83ce878f96">[email protected]</span></a>; Office of Legal Counsel at 202-900-
8652 (voice), 1-800-669-6820 (TTY). Requests for this rulemaking in an
alternative format should be made to the Office of Communications and
Legislative Affairs at (202) 921-3191 (voice), 1-800-669-6820 (TTY), or
1-844-234-5122 (ASL video phone).
SUPPLEMENTARY INFORMATION:
Introduction
On December 29, 2022, President Biden signed the Pregnant Workers
Fairness Act (PWFA) into law.\1\ The PWFA requires a covered entity 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, absent undue
hardship on the operation of the business of the covered entity. 42
U.S.C. 2000gg-3 requires the Equal Employment Opportunity Commission
(EEOC or Commission) to promulgate regulations to implement the PWFA.
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\1\ Consolidated Appropriations Act, 2023, Public Law 117-328,
Division II, 136 Stat. 4459, 6084 (2022) (codified at 42 U.S.C.
2000gg-2000gg-6).
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The PWFA requires employers to provide reasonable accommodations to
qualified workers affected by pregnancy, childbirth, or related medical
conditions so they can remain healthy and in their jobs. The PWFA
received broad bipartisan support in both chambers of Congress and from
a wide variety of organizations representing industries, business
associations, individual businesses, numerous civil rights and women's
rights organizations, unions, and faith-based organizations.\2\ The
bill passed in the House by a vote of 315 to 101 and in the Senate by a
vote of 73-24.\3\
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\2\ See, e.g., Fighting for Fairness: Examining Legislation to
Confront Workplace Discrimination, Joint Hearing Before the Subcomm.
on Civ. Rts. & Hum. Servs. and the Subcomm. on Workforce Prots. of
the H. Comm. on Educ. & Lab., 117th Cong. 153 (2021) [hereinafter
Fighting for Fairness] (letter from scores of civil rights and
women's rights groups supporting the Pregnant Workers Fairness Act);
id. at 151 (letter of support from over two dozen individual
businesses, the U.S. Women's Chamber of Commerce, and the National
Association of Manufacturers); Long Over Due: Exploring the Pregnant
Workers Fairness Act (H.R. 2694), Hearing Before the Subcomm. on
Civ. Rts. & Hum. Servs. of the H. Comm. on Educ. & Lab., 116th Cong.
142 (2019) [hereinafter Long Over Due] (letter of support from
health care providers and public health professionals); id. at 179
(letter of support from the National WIC Association); id. at 183
(letter of support from the March of Dimes); 168 Cong. Rec. S7,049
(daily ed. Dec. 8, 2022) (statement of Sen. Patty Murray) (``[t]his
is, fundamentally, a bipartisan bill that we have worked closely
with our Republican colleagues on. Senator Cassidy coleads this
bill. He has been an amazing partner''); id. at S7,048 (statement of
Sen. Robert P. Casey, Jr.) (noting that the bill has bipartisan
support and that ``[e]veryone from the ACLU to the U.S. Conference
of Catholic Bishops, to the U.S. Chamber of Commerce supports this
legislation'').
\3\ Roll Call 143, Bill Number: H.R. 1065, Office of the Clerk,
U.S. House of Representatives (May 14, 2021), <a href="https://clerk.house.gov/Votes/2021143">https://clerk.house.gov/Votes/2021143</a> (setting out the House vote tally for
the Pregnant Workers Fairness Act); 168 Cong. Rec. S10,071 (daily
ed. Dec. 22, 2022) (setting out the Senate vote tally for the
Pregnant Workers Fairness Act to be added as an amendment to the
Consolidated Appropriations Act, 2023).
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The PWFA Addresses Limitations in Coverage Under Title VII, the ADA,
and the FMLA
The PWFA recognizes that there are gaps in the Federal legal
protections for workers affected by pregnancy, childbirth, or related
medical conditions, even though they may have certain rights under
existing civil rights laws, such as Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000e et seq. (as amended by the Pregnancy
Discrimination Act (PDA)) (Title VII), the Americans with Disabilities
Act of 1990, 42 U.S.C. 12111 et seq. (ADA),\4\ the Family and Medical
Leave Act of 1993, 29 U.S.C. 2601 et seq. (FMLA), and various State and
local laws.\5\
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\4\ The references to the ADA in this preamble are intended to
apply equally to the Rehabilitation Act of 1973, as all
nondiscrimination standards under Title I of the ADA also apply to
Federal agencies under Section 501 of the Rehabilitation Act, and
Federal applicants and employees are covered by the PWFA.
\5\ See, e.g., Cal. Gov't Code 12945(a)(3); N.D. Cent. Code Ann.
14-02.4-03; W. Va. Code 5-11B-2; see also U.S. Dep't of Lab.,
Employment Protections for Workers Who Are Pregnant or Nursing,
<a href="https://www.dol.gov/agencies/wb/pregnant-nursing-employment-protections">https://www.dol.gov/agencies/wb/pregnant-nursing-employment-protections</a> (last visited Apr. 4, 2023) [hereinafter Employment
Protections for Workers Who Are Pregnant or Nursing]. In addition,
Federal laws involving Federal funding such as Title IX of the
Education Amendments Act of 1972 (20 U.S.C. 1681 et seq.) and the
Workforce Innovation and Opportunities Act (29 U.S.C. 3240) provide
protection from sex discrimination, including discrimination based
on pregnancy, childbirth, or related medical conditions.
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[[Page 54715]]
Under Title VII, a worker affected by pregnancy, childbirth, or
related medical conditions may be able to obtain a workplace
modification to allow them to continue to work.\6\ Typically courts
have only found in favor of such claims if the worker can identify
another individual similar in their ability or inability to work who
received such an accommodation, or if there is some direct evidence of
disparate treatment (such as a biased comment or a policy that, on its
face, excludes pregnant workers).\7\ However, there may not always be
similarly situated employees. For this reason, some pregnant workers
have not received simple, common-sense accommodations, such as a stool
for a cashier \8\ or bathroom breaks for a preschool teacher.\9\ And
even when the pregnant worker can identify other workers who are
similar in their ability or inability to work, some courts have still
not found a Title VII violation.\10\
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\6\ Title VII protects workers from discrimination based on sex,
which includes pregnancy, childbirth, or related medical conditions.
42 U.S.C. 2000e(k). Title VII's prohibition on sex discrimination
includes discrimination ``with respect to . . . compensation, terms,
conditions, or privileges of employment.'' 42 U.S.C. 2000e-2(a)(1).
Title VII also provides that ``women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same
for all employment-related purposes, including receipt of benefits
under fringe benefit programs, as other persons not so affected but
similar in their ability or inability to work.'' 42 U.S.C. 2000e(k).
\7\ See, e.g., Young v. United Parcel Serv., Inc., 575 U.S. 206,
229 (2015).
\8\ See, e.g., Portillo v. IL Creations Inc., 2019 WL 1440129,
at *5 (D.D.C. Mar. 31, 2019).
\9\ See, e.g., Wadley v. Kiddie Acad. Int'l, Inc., 2018 WL
3035785, at *4 (E.D. Pa. June 19, 2018).
\10\ See, e.g., EEOC v. Wal-mart Stores East, L.P., 46 F.4th
587, 597-99 (7th Cir. 2022) (concluding that the employer did not
engage in discrimination when it failed to accommodate pregnant
workers with light duty assignments, even though the employer
provided light duty assignments for workers who were injured on the
job); but see, e.g., Legg v. Ulster Cnty., 820 F.3d 67, 69, 75-77
(2d Cir. 2016) (vacating judgment for the employer where officers
injured on the job were entitled to light duty but pregnant workers
were not).
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Under the ADA, certain workers affected by pregnancy, childbirth,
or related medical conditions may have the right to accommodations if
they show that they have an ADA disability; this standard does not
include pregnancy itself but instead requires the showing of a
pregnancy-related disability.\11\
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\11\ 42 U.S.C. 12102(2) & (4); 29 CFR part 1630 app. 1630(h);
EEOC, Enforcement Guidance on Pregnancy Discrimination and Related
Issues II (2015), <a href="https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues">https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues</a> [hereinafter
Enforcement Guidance on Pregnancy Discrimination].
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Under the FMLA, covered workers can receive up to 12 weeks of job-
protected unpaid leave for, among other things, a serious health
condition, the birth of a child, and bonding with a newborn within one
year of birth.\12\ However, employees must work for an employer with 50
or more employees within 75 miles of their worksite and meet certain
tenure requirements in order to be entitled to FMLA leave.\13\ Survey
data from 2018 show that only 56 percent of employees are eligible for
FMLA leave.\14\ Further, the FMLA only provides unpaid leave--it does
not require reasonable accommodations that would allow workers to stay
on the job and continue to be paid.
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\12\ 29 U.S.C. 2612(a)(1); 29 CFR 825.120.
\13\ 29 U.S.C. 2611(2)(A), (B).
\14\ Scott Brown et al., Employee and Worksite Perspectives of
the Family and Medical Leave Act: Executive Summary for Results from
the 2018 Surveys 3 (2020), <a href="https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018SurveyResults_ExecutiveSummary_Aug2020.pdf">https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018SurveyResults_ExecutiveSummary_Aug2020.pdf</a> [hereinafter
Brown et al.].
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The PWFA responds to these and other limitations and fills the gaps
in current Federal legal protections. Under the PWFA, as set forth
fully below, coverage is the same as Title VII and the ADA, and
reasonable accommodations are available to help apply for a job; to
perform a job; to enjoy equal benefits and privileges of employment;
and to temporarily suspend the performance of an essential function of
a position, if certain conditions are met. Importantly, the PWFA allows
workers \15\ with uncomplicated pregnancies to seek accommodations,
recognizing that even uncomplicated pregnancies may create limitations
for workers.\16\
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\15\ This preamble uses the term ``worker'' interchangeably with
``employee or applicant.'' For purposes of the PWFA, the term
``worker'' does not apply to independent contractors.
\16\ See, e.g., Long Over Due, supra note 2, at 7 (statement of
Rep. Jerrold Nadler) (``Pregnancy is not a disability. Sometimes,
due to complications or even in healthy pregnancies, workers need a
reasonable accommodation from their employer.''). Throughout this
document, the EEOC uses the term ``uncomplicated'' pregnancy rather
than ``healthy'' or ``normal.''
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In addition to pregnancy and childbirth, the PWFA covers ``related
medical conditions.'' \17\ ``Related medical conditions'' is a term
used in Title VII, that previously has been defined by the
Commission.\18\ As discussed in detail in the section-by-section
analysis of part 1636.3(b), the proposed rule explains that the
existing definition will be used for the PWFA, as it is appropriate for
the text of the statute. This definition reflects the government's
longstanding and consistent interpretation of the phrase and, based on
canons of statutory interpretation, is the legal definition Congress
intended by choosing to use the same language in the same type of
statute. Further, as explained in the proposed rule, the PWFA covers
limitations stemming from medical conditions that are episodic in
nature and related to pregnancy or childbirth. The PWFA also covers
existing conditions that are exacerbated by, and therefore related to,
pregnancy or childbirth, such as high blood pressure, anxiety, or
carpal tunnel syndrome. While some workers may be able to address any
issues that arise related to these conditions without a reasonable
accommodation, indeed without even mentioning the issue at the
workplace, others may need reasonable accommodations that are covered
under the PWFA.
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\17\ 42 U.S.C. 2000gg-1.
\18\ 42 U.S.C. 2000e(k); See Enforcement Guidance on Pregnancy
Discrimination, supra note 11, at I.A.4 (2015).
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As set out in detail in the section-by-section analysis of parts
1636.3(h) and (i), 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; \19\ assignment to light
duty; \20\
[[Page 54716]]
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.\21\ The proposed
regulation includes a non-exhaustive list of examples of possible
reasonable accommodations, and the preamble and the proposed appendix
include additional examples.
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\19\ The Commission recognizes that different types of employers
use different terms for time away from work, including leave, paid
time off (PTO), time off, sick time, vacation, and administrative
leave, among others. Throughout the preamble, the proposed
regulation, and the proposed appendix, the Commission uses the term
``leave'' or ``time off'' and intends those terms to cover leave
however it is identified by the specific employer.
\20\ The Commission recognizes that ``light duty'' programs, or
other programs providing modified duties, can vary depending on the
covered entity. EEOC, Enforcement Guidance: Workers' Compensation
and the ADA, text above Question 27 (1996), <a href="https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada">https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada</a>
[hereinafter Enforcement Guidance: Workers' Compensation]. In the
context of the proposed regulation, the Commission intends ``light
duty'' to include the types of programs included in Questions 27 &
28 of the Enforcement Guidance on Workers' Compensation and any
other policy, practice, or system that a covered entity has for
accommodating employees, including when one or more essential
functions of a position are temporarily excused.
\21\ 42 U.S.C. 2000gg(6).
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Reasonable Accommodations for Pregnancy, Childbirth, or Related Medical
Conditions Are Critically Important for Workers and Their Families
The reasonable accommodations provided by the PWFA for workers
experiencing pregnancy, childbirth, or related medical conditions are
critical to the economic security of women workers and their families.
Women are the primary, sole, or co-breadwinners in nearly 64 percent of
families, earning at least half of their total household income.\22\ As
of 2021, over 66 percent of women in the United States who gave birth
in the prior year were in the labor force,\23\ up from about 57 percent
in 2006.\24\ Moreover, an increasing number of pregnant workers are
working later into their pregnancies--over 80 percent of first-time
mothers who worked during their pregnancy worked into the last three
months before their child's birth.\25\ The lack of accommodations for
pregnancy, childbirth, or related medical conditions means that
pregnant workers can be faced with an impossible choice between their
job and a necessary paycheck or their health or the health of their
pregnancy.\26\ Without accommodations, pregnant workers too often may
find that they must quit their jobs or face being fired, which can also
mean that workers lose their employer-sponsored health insurance at a
time when they especially need it. Others are forced to take leave,
which can mean that the worker does not have leave to recover from
childbirth later. By providing a path for accommodations for these
workers, the PWFA will protect workers' ability to earn, remain in the
workforce, and advance in their careers.
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\22\ H.R. Rep. No. 117-27, pt.1, at 21-22 (2021) (internal
citations omitted); id. at 25 (noting that ``[p]regnant workers who
are pushed out of the workplace might feel the effects for decades,
losing out on everything from 401(k) or other retirement
contributions to short-term disability benefits, seniority,
pensions, social security contributions, life insurance, and
more''). In the NPRM, when using language from specific sources,
EEOC uses the language of that source (e.g., ``women'' or ``pregnant
women'').
\23\ U.S. Census Bureau, Births in the Past Year and Labor Force
Participation for Women Aged 16-50, by Education: 2006 to 2019,
(select ``Historical Table 5'') (Feb. 15, 2023), <a href="https://www.census.gov/library/visualizations/time-series/demo/fertility-time-series.html">https://www.census.gov/library/visualizations/time-series/demo/fertility-time-series.html</a> [hereinafter Births in the Past Year and Labor
Force Participation]; see also Steven Ruggles et al., IPUMS USA:
Version 12.0 (2022), <a href="https://doi.org/10.18128/D010.V12.0">https://doi.org/10.18128/D010.V12.0</a>
[hereinafter IPUMS Data] (providing that, in 2021, over 66 percent
of women in the U.S. who gave birth in the prior year were in the
labor force). Data are available by request to registered IPUMS USA
users; please contact <a href="/cdn-cgi/l/email-protection#fe978e8b938dbe8b9390d09b9a8b"><span class="__cf_email__" data-cfemail="b5dcc5c0d8c6f5c0d8db9bd0d1c0">[email protected]</span></a>.
\24\ Births in the Past Year and Labor Force Participation,
supra note 23, (select ``Historical Table 5'').
\25\ Lynda Laughlin, U.S. Census Bureau, U.S. Dep't of Com.,
Maternity Leave and Employment Patterns of First-Time Mothers: 1961-
2008 6 (2011), <a href="https://www2.census.gov/library/publications/2011/demo/p70-128.pdf">https://www2.census.gov/library/publications/2011/demo/p70-128.pdf</a> [hereinafter Maternity Leave and Employment
Patterns of First-Time Mothers].
\26\ See, e.g., Markup of the Paycheck Fairness Act; Pregnant
Workers Fairness Act; Workplace Violence Prevention for Health Care
and Social Service Workers Act 54:46 (2021), <a href="https://www.youtube.com/watch?v=p6Ie2S9sTxs">https://www.youtube.com/watch?v=p6Ie2S9sTxs</a> [hereinafter Markup of the
Pregnant Workers Fairness Act] (statement of Rep. Kathy Manning)
(stating that the goal of the PWFA is to help pregnant workers ``to
deliver healthy babies while maintaining their jobs''); id. at 21:50
(statement of Rep. Robert C. Scott) (stating that, ``without the
basic protections, too many workers are forced to choose between a
healthy pregnancy and their paychecks''); id. at 1:35:03 (statement
of Rep. Lucy McBath) (stating that ``no mother should ever have to
choose between the health of themselves and their child or a
paycheck'').
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Importantly, the economic damage done to pregnant workers and their
families due to the lack of a right to reasonable accommodation during
pregnancy is especially hard-hitting for workers in low-wage jobs.
These workers are the least likely to have flexibility in their jobs or
savings upon which to draw if they are unemployed or on unpaid
leave.\27\
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\27\ H.R. Rep. No. 117-27, pt. 1 at 22-23.
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Accommodations for limitations due to pregnancy, childbirth, or
related medical conditions are especially necessary for pregnant
workers who face complications or a high risk of complications, or for
those who hold particular kinds of jobs. As Representative Jahana Hayes
noted during the debate preceding the House Committee vote on the PWFA,
``women of color . . . are more likely to hold inflexible and
physically demanding jobs that can present specific challenges for
pregnant workers, such as home health aides, food service workers,
package handlers, and cleaners. The labor-intensive requirements of
these jobs sometimes require a temporary reasonable accommodation so
women can remain on the job while protecting the health of themselves
and their babies.'' \28\
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\28\ Markup of the Pregnant Workers Fairness Act, supra note 26,
at 1:41 (statement of Rep. Jahana Hayes).
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In fact, ``Black women are more than three times as likely as White
women to die from pregnancy-related causes, while American Indian/
Alaska Native [women] are more than twice as likely'' \29\ and a recent
study shows that negative health outcomes during pregnancy
disproportionately affect Black women compared to White women
regardless of wealth.\30\ Additionally, ``Black mothers are more likely
to experience stillbirth compared to Hispanic and White mothers.'' \31\
Providing for workplace accommodations due to pregnancy, childbirth or
related medical conditions is one step that may help address the
maternal health crisis.\32\
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\29\ White House Blueprint for Addressing the Maternal Health
Crisis 15 (2022), <a href="https://www.whitehouse.gov/wp-content/uploads/2022/06/Maternal-Health-Blueprint.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/06/Maternal-Health-Blueprint.pdf</a>.
\30\ Kate Kennedy-Moulton et al., Maternal and Infant Health
Inequality: New Evidence from Linked Administrative Data 5, Nat'l
Bureau of Econ. Rsch., Working Paper No. 30,693, (2022), <a href="https://www.nber.org/system/files/working_papers/w30693/w30693.pdf">https://www.nber.org/system/files/working_papers/w30693/w30693.pdf</a> (finding
that maternal and infant health vary with income, but infant and
maternal health in Black families at the top of the income
distribution is similar to or worse than that of White families at
the bottom of the income distribution).
\31\ CDC, Black Mothers Are More Likely to Experience Stillbirth
Compared to Hispanic and White Mother, (Nov. 3, 2022), <a href="https://www.cdc.gov/ncbddd/stillbirth/features/kf-black-mothers-stillbirth.html">https://www.cdc.gov/ncbddd/stillbirth/features/kf-black-mothers-stillbirth.html</a>.
\32\ See U.S. Dep't of Lab., Black Mothers at Work: A Discussion
on Workplace Challenges and Supports, (Apr. 11, 2023), <a href="https://usdolevents.webex.com/recordingservice/sites/usdolevents/recording/654d1e18bab8103bbdff00505681d077/playback">https://usdolevents.webex.com/recordingservice/sites/usdolevents/recording/654d1e18bab8103bbdff00505681d077/playback</a> (discussing how Federal
employment laws can respond to some of the issues faced by Black
mothers at work).
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The PWFA Limits the Burden on Covered Entities
The PWFA is carefully designed to limit the burden on covered
entities. Like the ADA, the PWFA provides for reasonable accommodations
in certain circumstances. 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. According to a study by the Job Accommodation Network
(JAN) regarding accommodations for people
[[Page 54717]]
with disabilities, most employers report no costs or low costs for
providing these accommodations. Of the 720 employers who were able to
provide cost information related to accommodations they had provided,
356 (49.4 percent) said the accommodations needed by their employees
cost nothing. Another 312 (43.3 percent) experienced a one-time cost.
Only 52 (7.2 percent) said the accommodation resulted in an ongoing,
annual cost to the company. Of those accommodations that did have a
one-time cost, the median one-time expenditure as reported by the
employer was $300.\33\ While there are not data regarding the cost for
accommodations specifically for pregnancy, one survey concluded that
the most common accommodation needed by pregnant workers was additional
breaks, especially for using the bathroom, which is a low- to no-cost
accommodation.\34\ 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.
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\33\ Job Accommodation Network, Costs and Benefits of
Accommodation, (May 4, 2023), <a href="https://askjan.org/topics/costs.cfm">https://askjan.org/topics/costs.cfm</a>
[hereinafter Costs and Benefits of Accommodation].
\34\ Eugene R. Declercq et al., Listening to Mothers III: New
Mothers Speak Out 36 (2013), <a href="https://www.nationalpartnership.org/our-work/resources/health-care/maternity/listening-to-mothers-iii-new-mothers-speak-out-2013.pdf">https://www.nationalpartnership.org/our-work/resources/health-care/maternity/listening-to-mothers-iii-new-mothers-speak-out-2013.pdf</a> [hereinafter Listening to Mothers
III].
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Additionally, as set out in the accompanying economic analysis of
the PWFA pursuant to Executive Order 12866, the number of workers
seeking an accommodation from a given employer in a year will be small.
The EEOC has calculated that in 2021, women of reproductive age (aged
16-50 years) comprised approximately 33 percent of U.S. workers. Of
these, approximately 4.7 percent gave birth to at least 1 child the
previous year.\35\ Not all pregnant workers require an accommodation,
so the actual number of accommodations may be even lower than this
number suggests. And, because the law will keep pregnant workers in the
workforce, even if an employer does incur costs to provide a PWFA
accommodation, the employer also may experience a reduction in turnover
and money spent to hire and train a new employee.
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\35\ See IPUMS Data, supra note 23; see also Fighting for
Fairness, supra note 2, at 109 (testimony of Fatima Goss Graves,
President & CEO, National Women's Law Center) (noting that even in
occupations in which women are the most likely to be employed, the
number of pregnancies per year is quite small; ``[f]or example
pregnant women are most likely to work as elementary school teachers
and middle school teachers, but only 3.2 percent of all elementary
and middle school teachers are pregnant in a given year'').
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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,'' \36\ and Title VII's enforcement procedures.\37\ 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.\38\ By borrowing language and concepts
from Title VII and the ADA, the PWFA allows employers to build on
existing policies and processes.
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\36\ 42 U.S.C. 2000gg(2)(B)(i).
\37\ 42 U.S.C. 2000gg-2(a).
\38\ 42 U.S.C. 2000gg(7).
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Like the ADA, the PWFA does not require a covered entity to provide
a reasonable accommodation that would cause undue hardship.\39\ 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.
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\39\ 42 U.S.C. 2000gg-2(g).
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Finally, the PWFA is similar to existing laws in 30 States and
localities regarding accommodations for pregnant workers; employers in
those States and localities already are familiar with and comply with
laws similar to the PWFA.\40\ The PWFA sets a standard for the entire
nation so that employees have a consistent minimum level of protection
regardless of where they live in the United States, and no State's
employers are significantly disadvantaged by differences in State law
protections for employees affected by pregnancy, childbirth, or related
medical conditions.
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\40\ Employment Protections for Workers Who Are Pregnant or
Nursing, supra note 5.
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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
[[Page 54718]]
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.
Executive Summary of the PWFA's Major Provisions and an Outline of This
NPRM
The PWFA requires a covered entity to provide reasonable
accommodations, absent undue hardship, to a qualified employee or
applicant with a known limitation related to, affected by, or arising
out of pregnancy, childbirth, or related medical conditions. The
Commission's proposed rule addresses each element of this requirement
in greater detail; this section contains a summary in outline form. As
required by the PWFA, the proposed regulations also provide examples of
reasonable accommodations.
(1) Coverage (42 U.S.C. 2000gg(2) & (3)):
a. The PWFA covers employers (as well as unions and employment
agencies), employees, applicants, and former employees who are
currently covered by (1) Title VII; (2) the Congressional
Accountability Act of 1995, 2 U.S.C. 1301 et seq.; \41\ (3) the
Government Employee Rights Act of 1991, 42 U.S.C. 2000e-16b; 2000e-16c
(GERA); or (4) section 717 of Title VII, 42 U.S.C. 2000e-16, which
covers Federal employees. Whoever satisfies the definition of an
``employer'' or ``employee'' under any of these statutes is an employer
or employee for purposes of the PWFA.
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\41\ The EEOC does not have enforcement authority for the
Congressional Accountability Act; thus, these proposed regulations
do not apply to workers or employers covered by that law. The PWFA
directs the Office of Congressional Workplace Rights to issue
regulations within six months after the Commission issues a final
rule in this rulemaking. 42 U.S.C. 2000gg-3(b).
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(2) Remedies and Enforcement (42 U.S.C. 2000gg-2):
a. The procedures for filing a charge or claim under the PWFA, as
well as the available remedies, including the ability to obtain
damages, are the same as under (1) Title VII; (2) the Congressional
Accountability Act; (3) GERA; and (4) section 717 of Title VII, for the
employees covered by the respective statutes. Limitations regarding
available remedies under these statutes likewise apply under the PWFA.
As with the ADA, damages are limited if the claim involves the
provision of a reasonable accommodation, and the employer makes a good
faith effort to meet the need for a reasonable accommodation.
(3) Known Limitation (42 U.S.C. 2000gg(4)):
a. ``Known limitation'' is a ``physical or mental condition related
to, affected by, or arising out of pregnancy, childbirth, or related
medical conditions that the employee or the employee's representative
has communicated to the employer whether or not such condition meets
the definition of disability'' under the ADA.
b. The proposed regulation explains the operative terms in this
definition.
i. ``Known'' means ``the employee or applicant, or a representative
of the employee or applicant, has communicated the limitation to the
covered entity.''
ii. ``Limitation'' means a physical or mental condition related to,
affected by, or arising out of pregnancy, childbirth, or related
medical conditions. The physical or mental condition that is the
limitation may be a modest, minor, and/or episodic impediment or
problem. The physical or mental condition also may be that a worker
affected by pregnancy, childbirth, or related medical conditions has a
need or problem related to maintaining their health or the health of
their pregnancy. The definition also includes when a worker is seeking
health care related to pregnancy, childbirth, or a related medical
condition itself.
iii. ``Pregnancy, childbirth, or related medical conditions'' is a
phrase used in Title VII (42 U.S.C. 2000e(k)) and has the same meaning
as in that statute; the proposed regulation also provides additional
examples of related medical conditions.
(4) Qualified (42 U.S.C. 2000gg(g)):
a. The PWFA has two definitions of qualified.
i. First, the PWFA uses language from the ADA (``an employee or
applicant who, with or without reasonable accommodation, can perform
the essential functions of the employment position'' is qualified).
ii. Second, the PWFA allows an employee or applicant to be
``qualified''--even if they cannot perform one or more essential
functions of the job--if the inability to perform the essential
function(s) is ``temporary,'' the worker could perform the essential
function(s) ``in the near future,'' and the inability to perform the
essential function(s) can be reasonably accommodated. The proposed rule
defines the terms ``temporary'' (lasting for a limited time, not
permanent, and may extend beyond ``in the near future'') and ``in the
near future'' (generally within forty weeks). It also discusses the
meaning of the requirement that the inability to perform the essential
functions(s) can be reasonably accommodated.
(5) Essential Function:
This is a term from the ADA, and the proposed rule uses the same
definition as in the ADA. In general terms, it means the fundamental
duties of the job.
(6) Reasonable Accommodation (42 U.S.C. 2000gg(7)):
This is a term from the ADA, and the PWFA uses a similar definition
as in the ADA. Generally, it means a change in the work environment or
how things are usually done. Because of the text and purpose of the
PWFA, the proposed rule includes supplemental provisions and specific
examples of reasonable accommodations, as explained in detail below.
(7) Undue Hardship (42 U.S.C. 2000gg(7)):
This is a term from the ADA and the PWFA uses a similar definition
as in the ADA. Generally, it means significant difficulty or expense
for the operation of the covered entity. Because of the text and
purpose of the PWFA, the proposed regulation includes supplemental
provisions to the ADA's definition, as explained in detail below.
(8) Interactive Process (42 U.S.C. 2000gg(7)):
This is a method from the ADA to help the covered entity and the
worker figure out a reasonable accommodation; the PWFA anticipates that
covered entities will use it for requests to accommodate known
limitations related to pregnancy, childbirth, or related medical
conditions. Generally, it means a discussion or two-way communication
between an employer and an employee or applicant to identify a
reasonable accommodation.
(9) Prohibited Acts (42 U.S.C. 2000gg-1):
a. The PWFA prohibits a covered entity from denying a qualified
employee or applicant with a known limitation a reasonable
accommodation, absent undue hardship.
b. The PWFA prohibits a covered entity from requiring a qualified
employee or applicant to accept an accommodation other than one arrived
at through the interactive process.
c. The PWFA prohibits a covered entity from denying employment
opportunities to a qualified employee or applicant if the denial is
based on the covered entity's need to make a reasonable accommodation
for the known limitation of the employee or applicant.
[[Page 54719]]
d. The PWFA prohibits a covered entity from requiring a qualified
employee with a known limitation to take leave, either paid or unpaid,
if another effective reasonable accommodation exists, absent undue
hardship.
e. The PWFA prohibits a covered entity from taking an adverse
action in terms, conditions, or privileges of employment against a
qualified employee on account of the employee requesting or using a
reasonable accommodation for a known limitation.
(10) Prohibition on Retaliation and Coercion (42 U.S.C. 2000gg(f)):
a. Like Title VII and the ADA, the PWFA prohibits retaliation
against any employee, applicant, or former employee because that person
has opposed acts or practices made unlawful by the PWFA or has made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under the PWFA.
b. Like the ADA, the PWFA prohibits coercion, intimidation,
threats, or interference with any individual in the exercise or
enjoyment of rights under the PWFA or with any individual aiding or
encouraging any other individual in the exercise or enjoyment of rights
under the Act. The proposed regulation also specifically provides that
like the ADA's retaliation and interference provisions, the PWFA's
retaliation and coercion provisions prohibit harassment based on an
individual's exercise or enjoyment of rights under the PWFA or aid or
encouragement of any other individual in doing so.
Section-by-Section Analysis of the Regulation
The Commission seeks comment on any part of the proposed
regulation, the section-by-section analysis, and the appendix. The
proposed appendix, entitled Appendix A to 29 CFR part 1636--
Interpretive Guidance on the Pregnant Workers Fairness Act, will become
part of 29 CFR part 1636 when the proposed rule is finalized. The
Interpretive Guidance represents the Commission's interpretation of the
issues addressed within it, and the Commission will be guided by the
regulation and the Interpretive Guidance when enforcing the PWFA. The
material currently in the appendix comes from the preamble to the
proposed rule. In addition, in the section-by-section analysis the
Commission has identified certain topics about which it is specifically
seeking comment. For ease of reference, the list of directed questions
appears at the end of the section-by-section analysis.
Where applicable, throughout the proposed rule, this preamble, and
the proposed appendix, the Commission proposes using definitions from
the ADA or Title VII, the ADA's implementing regulations, or the EEOC's
enforcement guidance regarding both statutes.
Section 1636.1 Purpose
In this section, the Commission sets forth the provisions of the
PWFA in general terms to describe the purpose of the law.
Section 1636.2 Definitions--General
Rather than redefine ``Commission,'' ``covered entity,''
``respondent,'' ``employer,'' ``employing office,'' and ``employee,''
the PWFA incorporates existing definitions from other civil rights
statutes. In the proposed rule, the Commission uses the same language
as the statutory provisions, except that it provides a full description
of the types of employers and employees covered by the Government
Employee Rights Act of 1991 (42 U.S.C. 2000e-16(c)(a)) (GERA), rather
than merely referencing GERA's definitions.
The PWFA at 42 U.S.C. 2000gg(3) uses ``employee (including an
applicant)'' in its definition of ``employee.'' Thus, throughout the
statute, the proposed regulations, and the proposed appendix, the term
``employee'' should be understood to include ``applicant'' where
relevant. Because the PWFA relies on Title VII for its definition of
``employee,'' the proposed rule clarifies that the term also includes
``former employee,'' where relevant.\42\ The PWFA applies to ``covered
entities,'' which include, as under Title VII, public or private
employers with fifteen or more employees, unions, employment agencies,
and the Federal Government.
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\42\ 42 U.S.C. 2000e(f). Under Title VII, the term ``employee''
includes former employees. See Robinson v. Shell Oil Co., 519 U.S.
337, 346 (1997) (holding that including former employees within sec.
704(a) of Title VII's coverage of ``employee'' was ``consistent with
the broader context of Title VII and the primary purpose of Sec.
704(a)); see also EEOC, Compliance Manual Section 2: Threshold
Issues 2-III.A (2009), <a href="http://www.eeoc.gov/policy/docs/threshold.html#2-III-A">http://www.eeoc.gov/policy/docs/threshold.html#2-III-A</a>.
---------------------------------------------------------------------------
The NPRM, proposed regulation, and proposed appendix use the term
``covered entity'' and the term ``employer'' interchangeably. The NPRM,
proposed regulation, and proposed appendix use the term ``employee or
applicant'' and ``employee''; where appropriate, ``employee'' or
``employee or applicant'' means ``employee, applicant, or former
employee.''
Section 1636.3 Definitions Specific to PWFA
1636.3(a) Known Limitation
The proposed rule reiterates the definition of ``known limitation''
from section 2000gg(4) of the PWFA and then provides definitions for
the operative terms.
1636.3(a)(1) Known
Paragraph (1) adopts the definition of ``known'' based on the PWFA
and thus defines it to mean that the employee or applicant, or a
representative of the employee or applicant, has communicated the
limitation to the covered entity.
1636.3(a)(2) Limitation
Paragraph (2) adopts the definition of ``limitation'' based on the
PWFA and thus defines it to mean a physical or mental condition related
to, affected by, or arising out of pregnancy, childbirth, or related
medical conditions. The ``physical or mental condition'' that is the
limitation may be a modest, minor, and/or episodic impediment or
problem. The definition encompasses when a worker affected by
pregnancy, childbirth, or related medical conditions has a need or
problem related to maintaining their health or the health of their
pregnancy.\43\ The definition also includes when the worker is seeking
health care related to the pregnancy, childbirth, or a related medical
condition itself. This is consistent with the ADA which permits
reasonable accommodations for obtaining medical treatment \44\ and
recognizes that for pregnancy, childbirth, or related medical
conditions the proper course of care can include regular appointments
and monitoring by a health care professional.\45\
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\43\ The preamble, proposed regulation, and proposed appendix
use the term ``maintain health or the health of the pregnancy.''
This includes avoiding risk to the employee's or applicant's health
or to the health of their pregnancy.
\44\ EEOC, Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the ADA, at text after n. 49 (2002), <a href="http://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada">http://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada</a> [hereinafter Enforcement
Guidance on Reasonable Accommodation].
\45\ See, e.g., Office of Women's Health, U.S. Dep't of Health
and Human Servs., Prenatal Care (last visited July 18, 2023)
(stating that during pregnancy usually visits are once a month until
week 28, twice a month from weeks 28-36 and once a week from weeks
36 to birth) <a href="https://www.womenshealth.gov/a-z-topics/prenatal-care">https://www.womenshealth.gov/a-z-topics/prenatal-care</a>;
Am. Coll. of Obstetricians & Gynecologists, Comm. Opinion No. 736,
Optimizing Post-Partum Care (stating the importance of regular post-
partum care) (2021) (<a href="https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-postpartum-care">https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-postpartum-care</a>) & Opinion No. 826, Protecting and Expanding Medicaid to
Improve Women's Health (encouraging the expansion of Medicaid to
improve post-partum care) (2021) (<a href="https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2021/06/protecting-and-expanding-medicaid-to-improve-womens-health">https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2021/06/protecting-and-expanding-medicaid-to-improve-womens-health</a>).
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[[Page 54720]]
The general principle informing the proposed rule's definition is
that the physical or mental condition (the limitation) required to
trigger the obligation to provide a reasonable accommodation under the
PWFA does not require a specific level of severity. This is clear from
the text of the statute, which does not contain a level of severity,
other than stating that the limitation does not need to meet the
definition of a ``disability'' under the ADA.\46\ The lack of a level
of severity is also necessary given the need the statute seeks to fill.
Workers who can show that their pregnancy-related condition meets the
definition of a disability may be eligible to receive an accommodation
under the ADA; workers whose limitations do not reach that threshold
are ineligible for such accommodations, and the PWFA is intended to
cover those workers.\47\ Additionally, the definition covers situations
where a worker seeks an accommodation in order to maintain their health
or the health of their pregnancy and avoid more serious consequences
and when a worker seeks health care for their pregnancy, childbirth, or
related medical conditions.\48\ Practically, allowing for
accommodations to maintain health and attend medical appointments also
increases the chances that the accommodation is minor and may decrease
the need for a more extensive accommodation because the worker may be
able to avoid more serious complications.
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\46\ 42 U.S.C. 2000gg(4).
\47\ 42 U.S.C. 2000gg(4). See, e.g., H.R. Rep. No. 117-27, pt.
1, at 12 (workers whose pregnancy-related impairments do not
substantially limit a major life activity and who are not covered by
the ADA can be covered by the PWFA); id. at 22-23 (accommodations
are frequently needed by, and should be provided to, people with
healthy pregnancies); id. (example of an ``uneventful pregnancy'' in
which a woman needed more bathroom breaks); id. at 14-22 (outlining
the gaps left by Title VII and the ADA that the PWFA is intended to
fill so that pregnant workers can receive reasonable
accommodations); id. at 56 (noting that ``minor limitations'' can be
covered because they presumably only require minor accommodations).
\48\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, at text above Question 17 (providing reasons for which an
employee may receive an accommodation, including to obtain medical
treatment and to avoid temporary adverse conditions in the work
environment because of the effect on the worker's health). See,
e.g., Markup of the Pregnant Workers Fairness Act, supra note 26, at
54:46 (statement of Rep. Kathy E. Manning) (goal of the PWFA is help
pregnant workers ``to deliver healthy babies while maintaining
jobs''); id. at 21:50 (statement of Rep. Robert C. Scott)
(``[W]ithout these protections, too many workers are forced to
choose between a healthy pregnancy and their paychecks''); id. at
1:35 (statement of Rep. Lucy McBath) (``[N]o mother should ever have
to choose between the heath of themselves and their child or
paycheck.''); id. at 1:44 (statement of Rep. Suzanne Bonamici)
(``[P]regnant workers should not have to choose between a healthy
pregnancy and a paycheck.'').
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Because the standard for known limitation in the statute does not
include a specific level of severity and accommodations are available
for non-severe physical or mental conditions, whether a worker has a
physical or mental condition related to, affected by, or arising out of
pregnancy, childbirth, or related medical conditions shall be construed
broadly to the maximum extent permitted by the PWFA.
Related to, Affected by, or Arising Out of
Whether a physical or mental condition is related to, affected by,
or arising out of pregnancy, childbirth, or related medical conditions
usually will be obvious. For example, if an employee is pregnant and as
a result has pain when standing for long periods of time, the
employee's physical or mental condition (pain when standing for a
protracted period) is related to the employee's pregnancy. An employee
who is pregnant and because of the pregnancy cannot lift more than 20
pounds has a physical condition related to pregnancy. An employee who
is pregnant and is seeking time off for prenatal health care
appointments is attending a medical appointment related to the
pregnancy. An employee who requests an accommodation to attend therapy
appointments for postpartum depression has a medical condition related
to pregnancy (postpartum depression) and is obtaining health care for
the related medical condition. A pregnant employee who is seeking an
accommodation to limit exposure to secondhand smoke to protect the
health of their pregnancy has a physical or mental condition (trying to
maintain the employee's health or the health of their pregnancy or
increased sensitivity to secondhand smoke) related to pregnancy. A
pregnant worker seeking time off in order to get an amniocentesis is
attending a medical appointment related to the pregnancy. An employee
who requests leave for IVF treatment for the worker to get pregnant has
a related medical condition (difficulty in becoming pregnant or
infertility) and is seeking health care related to it. An employee
whose pregnancy is causing fatigue has a physical condition (fatigue)
related to pregnancy. An employee whose pregnancy is causing back pain
has a physical condition (back pain) related to pregnancy. This is not
an exhaustive list of physical or mental conditions related to,
affected by, or arising out of pregnancy, childbirth, or related
medical conditions.
The Commission recognizes, however, that some physical or mental
conditions or limitations, including some of those in the examples
above, may occur even if a person is not pregnant (e.g., depression,
hypertension, constraints on lifting). To the extent that a covered
entity has reasonable concerns about whether a physical or mental
condition or limitation is ``related to, affected by, or arising out of
pregnancy, childbirth, or related medical conditions,'' the employer
may request information from the employee regarding the connection,
using the principles set out in section 1636.3(l) about the interactive
process and supporting documentation. For the most part, the Commission
anticipates that determining whether a limitation or physical or mental
condition is related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions will be a straightforward
determination that can be accomplished through a conversation between
the employer and the employee as part of the interactive process and
without the need for the employee to obtain documentation or
verification, such as documentation from a health care provider. Of
course, even if a covered entity concludes that a limitation is not
covered by the PWFA, the covered entity should consider whether the
limitation constitutes a disability that is covered by the ADA.
There may be situations where a physical or mental condition begins
as something that is related to, affected by, or arising out of
pregnancy, childbirth, or related medical conditions, and, once the
pregnancy, childbirth, or related medical condition is over, the
limitation remains. If an employer has questions regarding whether the
limitation is still related to, affected by, or arising out of
pregnancy, childbirth, or related medical conditions, the employer may
use the principles set out in the sections regarding the interactive
process and supporting documentation. Additionally, there may be
situations where that limitation qualifies as a disability under the
ADA. In those situations, an employer may use the principles set out in
the sections on the interactive process and supporting documentation
for the ADA.
[[Page 54721]]
1636.3(b) Pregnancy, Childbirth, or Related Medical Conditions
The PWFA uses the term ``pregnancy, childbirth, or related medical
conditions,'' which appears in Title VII's definition of sex.\49\
Because Congress chose to write the PWFA using the same language as
Title VII, in the proposed rule the Commission gives the term
``pregnancy, childbirth, or related medical conditions'' the same
meaning under the PWFA as under Title VII.\50\
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\49\ 42 U.S.C. 2000e(k).
\50\ See, e.g., Texas Dep't of Housing & Cmty. Affs. v.
Inclusive Cmtys. Project, 576 U.S. 519, 536 (2015) (``If a word or
phrase has been . . . given a uniform interpretation by inferior
courts . . . , a later version of that act perpetuating the wording
is presumed to carry forward that interpretation.'' (omissions in
original) (quoting Antonin Scalia & Bryan A. Garner, Reading Law 323
(2012)); Bragdon v. Abbott, 524 U.S. 624, 644-45 (1998) (``When
administrative and judicial interpretations have settled the meaning
of an existing statutory provision, repetition of the same language
in a new statute indicates, as a general matter, the intent to
incorporate its administrative and judicial interpretations as
well.''); Lorillard v. Pons, 434 U.S. 575, 581 (1978) (``[W]here, as
here, Congress adopts a new law incorporating sections of a prior
law, Congress normally can be presumed to have had knowledge of the
interpretation given to the incorporated law, at least insofar as it
affects the new statute.''); Hall v. U.S. Dep't of Agric., 984 F.3d
825, 840 (9th Cir. 2020) (``Congress is presumed to be aware of an
agency's interpretation of a statute. We most commonly apply that
presumption when an agency's interpretation of a statute has been
officially published and consistently followed. If Congress
thereafter reenacts the same language, we conclude that it has
adopted the agency's interpretation.'') (citations and internal
quotations omitted); Antonin Scalia & Bryan A. Garner, Reading Law
323 (2012) (``[W]hen a statute uses the very same terminology as an
earlier statute--especially in the very same field, such as
securities law or civil-rights law--it is reasonable to believe that
the terminology bears a consistent meaning.'').
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To assist workers and covered entities, the proposed regulation
includes a non-exhaustive list of examples of pregnancy, childbirth, or
related medical conditions that the Commission has concluded generally
fall within the statutory definition. These include conditions that
Federal courts and the EEOC have already concluded are part of the
definition under Title VII as well as other conditions that are based
on the expertise of medical professionals. The list in the proposed
regulation for the definition of ``pregnancy, childbirth, or related
medical conditions'' includes current pregnancy, past pregnancy,
potential pregnancy, lactation (including breastfeeding and pumping),
use of birth control, menstruation, infertility and fertility
treatments, endometriosis, miscarriage, stillbirth, or having or
choosing not to have an abortion, among other conditions.\51\ The
Commission emphasizes that the list in the regulation is non-
exhaustive, and to receive an accommodation an employee or applicant
does not have to specify a condition on this list or use medical terms
to describe a condition.
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\51\ Enforcement Guidance on Pregnancy Discrimination, supra
note 11, at I.A. (``pregnancy, childbirth, or related medical
conditions'' include current pregnancy, past pregnancy, potential or
intended pregnancy, infertility treatment, use of contraception,
lactation, breastfeeding, and the decision to have or not to have an
abortion, among other conditions); see, e.g., Hicks v. City of
Tuscaloosa, 870 F.3d 1253, 1259-60 (11th Cir. 2017) (finding
lactation and breastfeeding covered under the PDA, and asserting
that ``[t]he PDA would be rendered a nullity if women were protected
during a pregnancy but then could be readily terminated for
breastfeeding--an important pregnancy-related physiological
process'') (internal citation and quotation omitted); EEOC v.
Houston Funding II, Ltd., 717 F.3d 425, 429-30 (5th Cir. 2013)
(``[A]s both menstruation and lactation are aspects of female
physiology that are affected by pregnancy, each seems readily to fit
into a reasonable definition of `pregnancy, childbirth, or related
medical conditions' ''); Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d
358, 364 (3d Cir. 2008) (holding that the PDA prohibits an employer
from discriminating against a female employee because she has
exercised her right to have an abortion); Kocak v. Cmty. Health
Partners of Ohio, Inc., 400 F.3d 466, 470 (6th Cir. 2005) (stating
that the plaintiff ``cannot be refused employment on the basis of
her potential pregnancy''); Turic v. Holland Hosp., Inc., 85 F.3d
1211, 1214 (6th Cir. 1996) (finding the termination of a pregnant
employee because she contemplated having an abortion violated the
PDA); Piraino v. Int'l Orientation Res., Inc., 84 F.3d 270, 274 (7th
Cir. 1996) (rejecting ``surprising claim'' by the defendant that no
pregnancy discrimination can be shown where the challenged action
occurred after the birth of the plaintiff's baby); Carney v. Martin
Luther Home, Inc., 824 F.2d 643, 648 (8th Cir. 1987) (referencing
the PDA's legislative history and noting commentator agreement that
``[b]y broadly defining pregnancy discrimination, Congress clearly
intended to extend protection beyond the simple fact of an
employee's pregnancy to include `related medical conditions' such as
nausea or potential miscarriage'') (citations and internal
quotations omitted); Ducharme v. Crescent City D[eacute]j[agrave]
Vu, L.L.C., 406 F. Supp. 3d 548, 556 (E.D. La. 2019) (finding that
``abortion is encompassed within the statutory text prohibiting
adverse employment actions `because of or on the basis of pregnancy,
childbirth, or related medical conditions' ''); Donaldson v. Am.
Banco Corp., Inc., 945 F. Supp. 1456, 1464 (D. Colo. 1996) (``It
would make little sense to prohibit an employer from firing a woman
during her pregnancy but permit the employer to terminate her the
day after delivery if the reason for termination was that the woman
became pregnant in the first place. The plain language of the
statute does not require it, and common sense precludes it.'');
Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1402-03 (N.D. Ill.
1994) (PDA gives women ``the right . . . to be financially and
legally protected before, during, and after her pregnancy'' and
stating ``[a]s a general matter, a woman's medical condition
rendering her unable to become pregnant naturally is a medical
condition related to pregnancy and childbirth for purposes of the
Pregnancy Discrimination Act.'') (internal citations and quotations
omitted); Neessen v. Arona Corp., 2010 WL 1731652, at *7 (N.D. Iowa
Apr. 30, 2010) (finding the plaintiff covered by the PDA where the
defendant allegedly refused to hire her because she had recently
been pregnant and given birth); 29 CFR part 1604 app. Questions 34-
37 (1979); H.R. Rep. No. 95-1786, at 4 (1978), as reprinted in 95th
Cong., 2d Sess. 4, 1978 U.S.C.C.A.N. 4749, 4766 (``Because the bill
applies to all situations in which women are `affected by pregnancy,
childbirth, and related medical conditions,' its basic language
covers decisions by women who chose to terminate their pregnancies.
Thus, no employer may, for example, fire or refuse to hire a woman
simply because she has exercised her right to have an abortion.'');
EEOC, Commission Decision on Coverage of Contraception (2000),
<a href="https://www.eeoc.gov/commission-decision-coverage-contraception">https://www.eeoc.gov/commission-decision-coverage-contraception</a>
(``The PDA's prohibition on discrimination against women based on
their ability to become pregnant thus necessarily includes a
prohibition on discrimination related to a woman's use of
contraceptives.'').
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However, to be a ``related medical condition'' as applied to the
specific employee or applicant in question, the condition must relate
to pregnancy or childbirth. Some of the ``related medical conditions''
listed in the regulation are conditions that commonly, but not
necessarily, relate to pregnancy or childbirth. If a worker has a
condition that is listed in the regulation but, in their situation, it
does not relate to pregnancy or childbirth, the condition shall not be
covered under the PWFA. For example, if a worker has high blood
pressure but that medical condition is not related to pregnancy or
childbirth, a physical or mental condition related to the worker's high
blood pressure is not eligible for an accommodation under the PWFA.
Other civil rights statutes, such as the ADA, separately may entitle
the worker to reasonable accommodation. If an employer has questions
regarding whether a condition is related to pregnancy or childbirth,
the employer may use the principles set out in the sections regarding
the interactive process and supporting documentation.
``Related medical conditions'' include conditions that existed
before pregnancy or childbirth (and for which an individual was perhaps
receiving reasonable accommodation under the ADA) but that may be or
have been exacerbated by pregnancy or childbirth, such that additional
or different accommodations are needed. For example, a worker who was
using unpaid leave as an accommodation to attend treatment for anxiety
may experience a worsening of anxiety due to pregnancy or childbirth
and request an additional accommodation. A worker who received extra
breaks to eat or drink due to Type 2 diabetes before pregnancy may need
additional accommodations during pregnancy to monitor and manage the
diabetes more closely and avoid or minimize adverse health consequences
to the worker or their pregnancy. A worker may have high blood pressure
that can be managed prior to the pregnancy, but once the worker is
pregnant, the high blood pressure poses a risk to the pregnancy and the
worker needs bed rest.
[[Page 54722]]
In these situations, an employee could request an additional
accommodation under the ADA or an accommodation under the PWFA.
1636.3(c) Employee's Representative
Paragraph (c) of this section of the proposed rule defines
``employee's representative'' because the known limitation may be
communicated to the covered entity by the employee or the employee's
representative. Under the ADA, a representative may also make the
request for an accommodation.\52\ Thus, the proposed rule uses the same
definition from the ADA and states that this term encompasses any
representative of the employee or applicant, including a family member,
friend, health care provider, or other representative.
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\52\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, Question 2.
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1636.3(d) Communicated to the Employer
Paragraph (d) of this section of the proposed rule states that the
PWFA's requirement that the known limitation be ``communicate[d] to the
employer'' means to make known to the covered entity either by
communicating with a supervisor, manager, someone who has supervisory
authority for the employee (or the equivalent for an applicant), or
human resources personnel, or by following the covered entity's policy
to request an accommodation. This should not be a difficult task, and
the employer should permit an employee or applicant to request an
accommodation through multiple avenues and means. Given that many
accommodations requested under the PWFA will be straightforward--like
additional bathroom breaks or water--the Commission emphasizes the
importance of employees being able to obtain accommodations by
communicating with the people who assign them daily tasks and whom they
would normally consult if they had questions or concerns. Employees
should not be made to wait for a reasonable accommodation that is
simple and imposes negligible cost, and is often likely temporary,
because they asked the wrong supervisor. The Commission seeks comment
on whether the definition of whom the employee or applicant may
communicate with to start the reasonable accommodation process is
appropriate or whether it should be expanded or limited with the
understanding that the process should not be burdensome for the worker.
Paragraphs (d)(1) and (2) explain that a request for a reasonable
accommodation under the PWFA, as with the ADA, does not need to be in
writing or use any specific words or phrases. Instead, employees or
applicants may request accommodations in conversation or may use
another mode of communication to inform the employer.\53\ A covered
entity may choose to write a memorandum or letter confirming a request
or may ask the employee or applicant to fill out a form or submit the
request in written form. However, the covered entity cannot ignore or
close the initial request because that initial request is sufficient to
place the employer on notice.\54\ Additionally, even though it is not
required, an employee may choose email or other similar written means
to submit a request for an accommodation to ensure clarity and create a
record.
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\53\ Id. at Question 3.
\54\ Id.
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Paragraph (d)(3) of this section of the proposed regulation sets
out what an employee or applicant must communicate to the employer to
request an accommodation under the PWFA. Such a request has two parts.
First, the employee or applicant (or their representative) must
identify the limitation that is the physical or mental condition and
that it is related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions. Second, the employee or
applicant (or their representative) must indicate that they need an
adjustment or change at work. As with the ADA, to request an
accommodation, an employee or applicant may use plain language and need
not mention the PWFA; use the phrases ``reasonable accommodation,''
``known limitation,'' ``qualified,'' ``essential function;'' use any
medical terminology; or use any other specific words or phrases.
Examples
Example 1636.3 #1: A pregnant employee tells her supervisor,
``I'm having trouble getting to work at my scheduled starting time
because of morning sickness.''
Morning sickness is a physical condition related to pregnancy
that impedes a person's ability to eat and drink and requires access
to a bathroom. The employee has identified a change needed at work
(change in work schedule). This is a request for a reasonable
accommodation under the PWFA.
Example 1636.3 #2: An employee who gave birth three months ago
tells the person who assigns her work at the employment agency, ``I
need an hour off once a week for treatments to help with my back
problem that started during my pregnancy.''
The back problem is a physical condition related to pregnancy,
and the employee has identified a change needed at work (leave for
medical appointments). This is a request for a reasonable
accommodation under the PWFA.
Example 1636.3 #3: An employee tells a human resources
specialist that they are worried about continuing to lift heavy
boxes because they are concerned that it will harm their pregnancy.
The employee has a limitation because they have a need or a
problem related to maintaining their health or the health of their
pregnancy, the employee identified a change needed at work
(assistance with lifting), and the employee communicated this
information to the employer. This is a request for a reasonable
accommodation under the PWFA.
Example 1636.3 #4: An employee's spouse, on the employee's
behalf, requests light duty for the employee because the employee
has a lifting restriction related to pregnancy; the employee's
spouse uses the employer's established process for requesting a
reasonable accommodation or light duty for the employee.
The lifting restriction is a physical condition related to the
employee's pregnancy, and the employee's representative (their
spouse) has identified a change needed at work (light duty). This is
a request for a reasonable accommodation under the PWFA.
Example 1636.3 #5: An employee verbally informs a manager of her
need for more frequent bathroom breaks, explains that the breaks are
needed because the employee is pregnant, but does not complete the
employer's online form for requesting accommodation.
The need to urinate more frequently is a physical condition
related to pregnancy, and the employee has identified a change
needed at work (additional bathroom breaks). An employee need not
use specific words or any specific form or template to make a
request for accommodation. This is a request for a reasonable
accommodation under the PWFA.
Example 1636.3 #6: An employee tells a supervisor that she needs
time off to recover from childbirth.
The need or a problem is related to maintaining the employee's
health after childbirth, and the employee has identified a change
needed at work (time off). This is a request for a reasonable
accommodation under the PWFA.\55\
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\55\ See infra Sec. 1636.3(h) Particular Matters Regarding
Leave as a Reasonable Accommodation for a discussion of how requests
for leave interact with situations where an employee has a right to
leave under an employer's policy or another law; see also EEOC,
Employer-Provided Leave and the Americans with Disabilities Act,
Communication After an Employee Requests Leave (2016), <a href="https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act">https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act</a> [hereinafter Technical Assistance on Employer-
Provided Leave], for an explanation of this interaction and other
helpful information about the interaction between the ADA and other
laws requiring employers to provide leave to employees.
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1636.3(e) Mitigating Measures
There may be steps that a worker can take to mitigate, or lessen,
the effect of a known limitation. Paragraph (e) of this section of the
proposed rule explains that, as with the ADA, the ameliorative, or
positive, effects of mitigating
[[Page 54723]]
measures, as that term is defined in the Commission's ADA regulations,
shall not be considered when determining if the employee has a
limitation under the PWFA. However, again as under the ADA, the
detrimental or non-ameliorative effects of mitigating measures, such as
negative side effects of medication, the burden of following a
particular treatment regimen, and complications that arise from
surgery, may be considered when determining if an employee has a
limitation under the PWFA.\56\
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\56\ 29 CFR 1630.2(j)(1)(vi), (4)(ii); see also 29 CFR part 1630
app. 1630.2(j)(1)(vi).
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1636.3(f) Qualified Employee or Applicant
An employee or applicant must meet the definition of ``qualified''
in the PWFA in one of two ways.\57\
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\57\ The PWFA does not address prerequisites for a position;
thus, whether an employee or applicant is qualified for the position
in question is determined based on whether the employee or applicant
can perform the essential functions of the position, with or without
a reasonable accommodation, or based on the second part of the
PWFA's definition of ``qualified.'' 42 U.S.C. 2000gg(6).
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In paragraph (f) of this section, the proposed rule reiterates the
statutory language that ``qualified employee'' means an employee or
applicant who, with or without reasonable accommodation, can perform
the essential functions of the position. Additionally, following the
statute, the proposed rule also states that an employee or applicant
shall be considered qualified if: (1) any inability to perform an
essential function is for a temporary period; (2) the essential
function could be performed in the near future; and (3) the inability
to perform the essential function can be reasonably accommodated. The
proposed rule relies on the ADA's definition of ``qualified
individual'' for applicants and employees,\58\ with necessary
modifications to account for differences in the language of the
statutes, as explained below.
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\58\ 42 U.S.C. 12111(8); 29 CFR 1630.2(m).
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As with the ADA, the determination of whether an employee with a
known limitation is qualified should be based on the capabilities of
the employee at the time of the relevant employment decision and should
not be based on speculation that the employee may become unable in the
future to perform certain tasks, may require leave, or may cause
increased health insurance premiums or workers' compensation costs.\59\
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\59\ 29 CFR part 1630 app. 1630.2(m).
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1636.3(f)(1) The First Part of PWFA's Definition of Qualified Employee
or Applicant--With or Without Reasonable Accommodation
Under 42 U.S.C. 2000gg(6), employees are qualified if they can
perform the essential functions of their jobs with or without
reasonable accommodation, which is the same language as in the ADA and
is interpreted accordingly in the proposed rule. ``Reasonable'' has the
same meaning as under the ADA on this topic--an accommodation that
``seems reasonable on its face, i.e., ordinarily or in the run of
cases,'' ``feasible,'' or ``plausible.'' \60\ Many workers seeking
reasonable accommodations under the PWFA will meet this part of the
definition. For example, a pregnant attorney who uses the firm's
established telework program to work at home during morning sickness
does not need an accommodation to perform the essential functions of
the job and therefore is qualified without a reasonable accommodation.
A pregnant cashier who needs a stool to perform the job will be
qualified with the reasonable accommodation of a stool. A teacher
recovering from childbirth who needs additional bathroom breaks will be
qualified with a reasonable accommodation that allows such breaks.
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\60\ US Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002);
see, e.g., Shapiro v. Twp. of Lakewood, 292 F.3d 356, 360 (3d Cir.
2002) (citing the definition from Barnett); Osborne v. Baxter
Healthcare Corp., 798 F.3d 1260, 1267 (10th Cir. 2015) (citing the
definition from Barnett); EEOC v. United Airlines, Inc., 693 F.3d
760, 762 (7th Cir. 2012) (citing the definition from Barnett); see
also Enforcement Guidance on Reasonable Accommodation, supra note
44, at text accompanying nn.8-9 (citing the definition from
Barnett).
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Determining ``Qualified'' for the Reasonable Accommodation of Leave
The proposed rule explains that when determining whether an
employee who needs leave as a reasonable accommodation meets the
definition of ``qualified,'' the relevant inquiry is whether the
employee would be able to perform the essential functions of the
position, with or without reasonable accommodation (or, if not, if the
inability to perform the essential function(s) is for a temporary
period, the essential function(s) could be performed in the near
future, and the inability to perform the essential function(s) can be
reasonably accommodated), with the benefit of a period of intermittent
leave, after a period of part-time work, or at the end of a period of
leave or time off.\61\ Thus, an employee who needs some form of leave
to recover from a known limitation caused, for example, by childbirth
or a miscarriage, can meet the definition of ``qualified'' because it
is reasonable to conclude that once they return from the period of
leave (or during the time they are working if it is intermittent leave)
they will be able to perform the essential functions of the job, with
or without additional reasonable accommodations or will be qualified
under the second part of the PWFA definition that is described in the
next subsection. Of course, if an employer can demonstrate that leave
would pose an undue hardship, for example, due to the length,
frequency, or unpredictable nature of the time off that was requested,
it may lawfully deny the request.\62\
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\61\ If the employee will not be able to perform all of the
essential functions at the end of the leave period, with or without
accommodation, the employee may still be qualified under the second
part of the PWFA's definition of qualified employee or applicant. 42
U.S.C. 2000gg(6).
\62\ As with the ADA, in determining whether leave under the
PWFA causes an undue hardship, an employer may consider leave that
the employee has already used under, for example, the FMLA. See
Technical Assistance on Employer-Provided Leave, supra note 55, at
Examples 17 and 18. For more information regarding leave as a
reasonable accommodation, see infra Sec. 1636.3(h) Particular
Matters Regarding Leave as a Reasonable Accommodation.
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1636.3(f)(2) The Second Part of PWFA's Definition of Qualified Employee
or Applicant--Temporary Inability To Perform an Essential Function
The PWFA provides that an employee or applicant can meet the
definition of ``qualified'' even if they cannot perform one or more
essential functions of the position in question, provided three
conditions are met: (1) the inability to perform an essential
function(s) is for a temporary period; (2) the essential function(s)
could be performed in the near future; and (3) the inability to perform
the essential function(s) can be reasonably accommodated.\63\
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\63\ 42 U.S.C. 2000gg(6).
---------------------------------------------------------------------------
Based on the overall structure and wording of the statute, the
second part of the definition of ``qualified'' is relevant only when an
employee or applicant cannot perform one or more essential functions of
the job in question because of a known limitation under the PWFA. It is
not relevant in any other circumstance. If the employee or applicant
can perform the essential functions of the position with or without a
reasonable accommodation, the first definition of ``qualified'' applies
(able to do the job with or without a reasonable accommodation). For
example, if a pregnant worker requests additional restroom breaks, the
question of whether they are qualified is simply whether they can
perform the essential
[[Page 54724]]
functions of their job with the reasonable accommodation of additional
restroom breaks, and there is no need to apply the definitions of
``temporary'' or ``in the near future,'' or to determine whether the
inability to perform an essential function can be reasonably
accommodated (as no such inability exists).
By contrast, some examples of situations where the second
definition may be relevant include: (1) a pregnant construction worker
is told by their health care provider to avoid lifting more than 20
pounds during the second through ninth months of pregnancy, an
essential function of the worker's job requires lifting more than 20
pounds, and there is not a reasonable accommodation that will allow the
worker to perform that function without lifting more than 20 pounds;
and (2) a pregnant police officer is unable to perform patrol duties
during the third through ninth months of the pregnancy, patrol duties
are an essential function of the job, and there is not a reasonable
accommodation that will allow the worker to perform the essential
functions of the patrol position.
Example 1636.3 #7/Qualified Employee: Launa has been working as
a landscaper for two years, and her job regularly involves moving
bags of soil that weigh 35-40 pounds. Launa becomes pregnant and
lets her supervisor know that she has a lifting restriction of 20
pounds because of her pregnancy.
1. Known Limitation: Launa's lifting restriction is a physical
condition related to pregnancy; Launa needs a change or adjustment
at work; Launa has communicated this information to the employer.
2. Qualified:
a. Launa may be qualified with a reasonable accommodation of a
device that helps with lifting.
b. If there is no device or other reasonable accommodation (or
the device or other reasonable accommodation is too expensive or
otherwise causes undue hardship for the employer) the employer must
consider whether Launa meets the second definition of qualified:
whether (1) the inability to perform the essential function is
temporary, (2) Launa could perform the essential function in the
near future, and (3) the inability to perform the essential function
can be reasonably accommodated.
If the employer establishes that all possible accommodations that
would allow the employee to temporarily suspend one or more essential
functions would impose an undue hardship, then the employee will not be
qualified under the PWFA's second definition of qualified (because the
inability to perform the essential function cannot be reasonably
accommodated).\64\
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\64\ If there is no reasonable accommodation that allows the
worker to continue to work, absent undue hardship, the employee may
be qualified for leave as a reasonable accommodation if leave does
not cause an undue hardship.
---------------------------------------------------------------------------
The PWFA does not provide definitions of the terms ``temporary'' or
``in the near future,'' nor does it give any additional explanation of
the third prong of this definition. The Commission has provided
definitions for these terms pursuant to its authority to issue
regulations to implement the PWFA.\65\
---------------------------------------------------------------------------
\65\ 42 U.S.C. 2000gg-3.
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1636.3(f)(2)(i) Temporary
The proposed rule defines the term ``temporary'' to mean that the
need to suspend one or more essential functions is ``lasting for a
limited time,\66\ not permanent, and may extend beyond `in the near
future.' '' As explained below, how long it may take before the
essential function can be performed is further limited by the
definition of ``in the near future.''
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\66\ Temporary, <a href="http://Merriam-Webster.com">Merriam-Webster.com</a> Dictionary, Merriam-Webster,
<a href="https://www.merriam-webster.com/dictionary/temporary">https://www.merriam-webster.com/dictionary/temporary</a> (``lasting for
a limited time'') (last visited June 13, 2023). This definition is
consistent with Robert v. Bd. of Cnty. Comm'rs' of Brown Cnty.,
Kan., 691 F.3d 1211, 1218 (10th Cir. 2012) which was cited in the
House Report in the discussion of this term. H.R. Rep. No. 117-27,
at n.109) (when determining whether a request for leave could be
``reasonable'' under the ADA, defining ``temporary'' as that the
essential function can be resumed).
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1636.3(f)(2)(ii) In the Near Future
The proposed rule defines ``in the near future'' to mean generally
forty weeks from the start of the temporary suspension of an essential
function. This is based on the time of a full-term pregnancy (forty
weeks). In the Commission's view, to define ``in the near future'' as
less than generally forty weeks--i.e., the duration of a full-term
pregnancy--would run counter to a central purpose of the PWFA of
keeping pregnant workers in the workforce even when pregnancy,
childbirth, or related medical conditions necessitate the reasonable
accommodation of temporarily suspending the performance of one or more
essential functions of a job.\67\ Of course, if an accommodation is
sought that requires the temporary suspension of an essential function,
regardless of the amount of time sought, the employer may raise the
undue hardship defense.
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\67\ See H.R. Rep. No. 117-27, pt. 1, at 5 (``When pregnant
workers do not have access to reasonable workplace accommodations,
they are often forced to choose between their financial security and
a healthy pregnancy. Ensuring that pregnant workers have access to
reasonable accommodations will promote the economic well-being of
working mothers and their families and promote healthy
pregnancies.''); id. at 22 (``When pregnant workers are not provided
reasonable accommodations on the job, they are oftentimes forced to
choose between economic security and their health or the health of
their babies.''); id. at 24 (``Ensuring pregnant workers have
reasonable accommodations helps ensure that pregnant workers remain
healthy and earn an income when they need it the most.''); id. at 33
(``The PWFA is about ensuring that pregnant workers can stay safe
and healthy on the job by being provided reasonable accommodations
for pregnancy, childbirth, or related medical conditions. . . . The
PWFA is one crucial step needed to reduce the disparities pregnant
workers face by ensuring that pregnant women, and especially
pregnant women of color, can remain safe and healthy at work.'').
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The Commission also recognizes there may be physical or mental
conditions related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions for which workers may seek
the temporary suspension of an essential function when the worker is
not currently pregnant. These conditions include pre-pregnancy
limitations such as infertility, and post-pregnancy limitations such as
acute cardio-vascular problems that are a consequence of the pregnancy.
Although the length of pre- and post-partum physical or mental
conditions will vary, the Commission proposes using ``generally forty
weeks'' to measure whether the worker meets the ``in the near future''
requirement in the second definition of ``qualified'' in every
situation where the reasonable accommodation sought under the PWFA is
the temporary suspension of one or more essential functions.
The Commission's decision is based on several factors. First, in
the first year after childbirth, severe health conditions, including
ones that may require the temporary suspension of an essential
function, are common.\68\ According to a Centers for Disease Control
and Prevention (CDC) study, 53% of pregnancy-related deaths occurred
from one week to one year after delivery, and 30% occurred one and one
half months to one year post-partum.\69\ Likely for similar reasons,
[[Page 54725]]
thirty-five States and the District of Columbia provide twelve months
of comprehensive Medicaid coverage after delivery, rather than sixty
days.\70\ Thus, allowing a worker to meet the second definition of
``qualified'' if they need an essential function temporarily suspended
for generally forty weeks after return to work from childbirth (or for
other reasons related to a known limitation) is a reasonable
approximation of the period of time needed ``in the near future'' for
conditions related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions and therefore is consistent
with the purpose of the PWFA. Finally, in the Commission's view, one
definition for ``in the near future'' will allow for simplified
administration.
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\68\ Susan Trost et. al., Pregnancy-Related Deaths: Data from
Maternal Mortality Review Committees in 36 U.S. States, 2017-2019,
Ctrs. for Disease Control & Prevention, U.S. Dep't of Health and
Human Servs. (2022), <a href="https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html">https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html</a>.
\69\ Id. More deaths occurred seven to 365 days after delivery
than occurred during delivery itself (53.3% v. 21.6%). The leading
causes of death were mental health conditions, hemorrhage, cardiac
and coronary conditions, infection, thrombotic embolism, and
cardiomyopathy. The leading causes of death varied by race and
ethnicity. For Black individuals, cardiac and coronary conditions
were the leading causes of death; for White individuals and Hispanic
individuals, the leading cause was mental health conditions; for
Asian individuals, the leading cause of death was hemorrhage. The
leading cause of death for Native American individuals was not
reported due to small sample size.
\70\ Centers for Medicare & Medicaid Services, U.S. Dep't of
Health and Human Servs., States that have Expanded Postpartum
Coverage, (last visited July 19, 2023) <a href="https://www.medicaid.gov/medicaid/quality-of-care/downloads/image-maternity-care-expansion.png">https://www.medicaid.gov/medicaid/quality-of-care/downloads/image-maternity-care-expansion.png</a>.
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The Commission emphasizes that the definition in this section does
not mean that the essential function(s) must always be suspended for
forty weeks, or that if an employee seeks the temporary suspension of
an essential function(s) for forty weeks it must be automatically
granted. The actual length of the temporary suspension of the essential
function(s) will depend upon what the employee requires, and the
covered entity always has available the defense that it would create an
undue hardship. However, the mere fact that the temporary suspension of
one or more essential functions is needed for any time period up to and
including generally forty weeks will not, on its own, render a worker
unqualified under the PWFA.
Further, the Commission recognizes that workers may need an
essential function temporarily suspended because of pregnancy; may take
leave to recover from childbirth; and, upon returning to work, may need
the same essential function or a different one temporarily suspended
due to a new or different physical or mental condition related to,
affected by, or arising out of pregnancy, childbirth, or related
medical conditions. In keeping with the requirement that the
determinations as to whether an individual is qualified under the PWFA
should be made based on the situation at hand and the accommodation
currently at issue,\71\ the Commission proposes that the determination
of ``in the near future'' would be made when the employee asks for each
accommodation that requires the suspension of one or more essential
functions. Thus, a worker who is three months pregnant seeking an
accommodation of the temporary suspension of an essential function will
meet the definition of ``qualified'' for ``in the near future'' because
the pregnancy will be over in less than forty weeks. When the worker
returns from leave after childbirth, if the worker needs an essential
function temporarily suspended, they will meet the definition of
``qualified'' for ``in the near future'' if they could perform the
essential function within forty weeks of the suspension. In other
words, for ``in the near future,'' the forty weeks would restart once
the pregnancy is over and the worker returns to work after leave.
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\71\ See 29 CFR part 1630 app. 1630.1 (``The determination of
whether an individual with a disability is qualified is to be made
at the time of the employment decision. The determination should be
based on the capabilities of the individual with the disability at
the time of the employment decision, and not be based on speculation
that the employee may become unable in the future'').
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In the Commission's view, restarting the calculation of ``generally
forty weeks'' in the definition of ``qualified'' for ``in the near
future'' is necessary because it would often be difficult, if not
impossible, for a pregnant employee to predict what their limitations
(if any) will be after pregnancy. Before childbirth, they may not know
whether, and if so, for how long, they will have a known limitation or
need an accommodation after giving birth. They also may not know
whether the accommodation after childbirth will require the temporary
suspension of an essential function, and, if so, for how long. All of
these questions may be relevant under the PWFA's second definition of
``qualified.''
Further, a rule that allows a covered entity to combine periods of
the temporary suspension of essential function(s) during pregnancy and
the post-partum period in order to determine if a worker is
``qualified'' would raise questions about, for example, whether the
requests were close enough in time to be combined and whether the forty
weeks should restart if a different essential function needs to be
temporarily suspended. Determining where and how those lines should be
drawn would require litigation regarding the term ``qualified'' and
create confusion around implementation of the statute.
The Commission notes that leave related to recovery from pregnancy,
childbirth, or related medical conditions does not count as time when
an essential function is suspended and thus is not relevant for the
second prong of the definition of qualified. If an individual needs
leave as a reasonable accommodation under the PWFA or, indeed, any
reasonable accommodation other than the temporary suspension of an
essential function, only the first definition of ``qualified'' is
relevant. In the case of leave, the question would be whether the
individual, after returning from the requested period of leave, would
be able to perform the essential functions of the position with or
without reasonable accommodation (or, if not, if the inability to
perform the essential function(s) is for a temporary period, the
essential function(s) could be performed in the near future, and the
inability to perform the essential function(s) can be reasonably
accommodated). Furthermore, for some workers, leave to recover from
childbirth will not require a reasonable accommodation because they
have a right to leave under Federal, State, or local law or as part of
an employer policy. Thus, for the purpose of determining whether the
employee is qualified under the second prong of ``qualified'' regarding
the suspension of an essential function, the Commission does not intend
for employers or workers to count time on leave for recovery from
childbirth.\72\
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\72\ For additional information on how leave should be addressed
under the PWFA, see supra With or Without Reasonable Accommodation--
Leave and infra Sec. 1636.3(h) Particular Matters Regarding Leave
as a Reasonable Accommodation.
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The Commission does not believe that its definition of ``in the
near future'' will cause excessive difficulties for covered entities
because the ``generally forty weeks'' time period is only to determine
if the worker can be considered qualified under this definition. If the
temporary suspension of the essential function causes undue hardship or
(as explained in the next section) the temporary suspension of the
essential function cannot be reasonably accommodated, the employer does
not have to provide the reasonable accommodation.
The Commission seeks comment on the proposed definition of ``in the
near future'' including (a) whether the definition of ``in the near
future'' post-pregnancy should be one year rather than generally forty
weeks; (b) whether periods of temporary suspension of an essential
function during pregnancy and post-pregnancy should be combined, and,
if so, how should that be done and what rule should be adopted to
ensure that a pregnant worker is not required to predict what
limitations they will experience after pregnancy given that a pregnant
worker will not generally be
[[Page 54726]]
able to do so; and (c) whether there are alternative approaches that
would more effectively ensure that workers are able to seek the
accommodations they need while limiting the burden on covered entities.
1636.3(f)(2)(iii) Can Be Reasonably Accommodated
The proposed rule also explains that to satisfy the PWFA's second
definition of ``qualified,'' the covered entity must be able to
reasonably accommodate the inability to perform one or more essential
functions without undue hardship. For some positions, this may mean
that one or more essential functions are temporarily suspended, with or
without reassignment to someone else, and the employee continues to
perform the remaining functions of the job. For other jobs, some of the
essential functions may be temporarily suspended, with or without
reassignment to someone else, and the employee may be assigned other
tasks to replace them. In yet other situations, one or more essential
functions may be temporarily suspended, with or without reassignment to
someone else, and the employee may perform the functions of a different
job to which the employer temporarily transfers or assigns them, or the
employee may participate in the employer's light or modified duty
program.\73\ Throughout this process, as with other reasonable
accommodation requests, an employer may need to consider more than one
alternative to identify a reasonable accommodation that does not pose
an undue hardship. Depending on how the temporary suspension is
accomplished, the covered entity may have to prorate or change a
performance or production standard so that the accommodation is
effective.\74\
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\73\ See H.R. Rep. No. 117-27, pt. 1, at 27 (``the temporary
inability to perform essential functions due to pregnancy,
childbirth, or related medical conditions does not render a worker
``unqualified. . . . there may be a need for a pregnant worker to
temporarily perform other tasks or otherwise be excused from
performing essential functions before fully returning to her
position once she is able.'').
\74\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, at Question 19.
Example 1636.3 #8: One month into a pregnancy, Akira, a worker
in a paint manufacturing plant, is told by her health care provider
that she should avoid certain chemicals for the remainder of the
pregnancy. One of the essential functions of this job involves
regular exposure to these chemicals. Akira talks to her supervisor,
explains her limitation, and asks that she be allowed to switch
duties with another worker whose job does not require the same
exposure but otherwise involves the same functions. There are
numerous other tasks that Akira could accomplish while not being
exposed to the chemicals.
1. Known limitation: Akira has a need or a problem relating to
maintaining the health of her pregnancy, which is a physical
condition related to pregnancy; Akira needs a change or adjustment
at work; Akira has communicated this information to her employer.
2. Qualified: Akira needs the temporary suspension of an
essential function.
a. Akira's inability to perform the essential function is
temporary.
b. Akira could perform the essential functions of her job in the
near future because Akira needs an essential function suspended for
less than forty weeks.
c. Akira's inability to perform the essential function may be
reasonably accommodated. The employer can suspend the essential
function that requires her to work with the chemicals and have her
do the remainder of her job. Alternatively, Akira can perform the
other tasks that are referenced or switch duties with another
worker. The employer must grant the accommodation (or another
reasonable accommodation) absent undue hardship.
Example 1636.3 #9: Two months into a pregnancy, Lydia, a
delivery driver, is told by her health care provider that she should
not lift more than 20 pounds. Lydia routinely has to lift 30-40
pounds as part of the job. She discusses the limitation with her
employer. The employer is unable to provide Lydia with assistance in
lifting packages, and Lydia requests placement in the employer's
light duty program, which is used for drivers who have on-the-job
injuries.
1. Known limitation: Lydia's lifting restriction is a physical
condition related to pregnancy; she needs a change in work
conditions; and she has communicated this information to the
employer.
2. Qualified: Lydia needs the temporary suspension of an
essential function.
a. Lydia's inability to perform the essential function is
temporary.
b. Lydia could perform the essential functions of her job in the
near future because Lydia needs an essential function suspended for
less than forty weeks.
c. Lydia's need to temporarily suspend an essential function of
her job may be reasonably accommodated through the existing light
duty program. The employer must grant the accommodation (or another
reasonable accommodation) absent undue hardship.
1636.3(g) Essential Functions
The proposed rule adopts the Commission's definition of ``essential
function'' contained in the regulations implementing the ADA
regulations: ``the fundamental job duties of the employment position
the individual . . . holds or desires,'' excluding ``the marginal
functions of the position.'' \75\ Thus, in determining whether
something is an essential function, the first consideration is whether
employees in the position actually are required to perform the
function, and relevant evidence includes both the position description
and information from incumbents (including the employee requesting the
accommodation) about what they actually do on the job.\76\
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\75\ 29 CFR 1630.2(n).
\76\ 29 CFR 1630.2(n); 29 CFR part 1630 app. 1630.2(n).
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The Commission seeks comments on whether there are additional
factors that should be considered in determining whether a function is
essential for purposes of the PWFA.\77\ For example, given that many,
if not all, known limitations under the PWFA will be temporary, should
the definition of ``essential function'' under the PWFA consider
whether the function is essential to be performed by the worker in the
limited time for which an accommodation will be needed.
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\77\ See H.R. Rep. No. 117-27, pt. 1, at 28 (stating that the
factors adopted by the EEOC to determine essential functions under
the ADA are ``instructive, although not determinative'' for the
PWFA).
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1636.3(h) Reasonable Accommodation--Generally
42 U.S.C. 2000gg(7) states that the term ``reasonable
accommodation'' has the meaning given to it in section 101 of the ADA
and shall be construed as it is construed under the ADA and the
Commission's regulations implementing the PWFA. As stated in the
Appendix to the ADA Regulations, ``[t]he obligation to make reasonable
accommodation is a form of non-discrimination'' and is therefore ``best
understood as a means by which barriers to the equal employment
opportunity [of an employee or applicant with a known limitation under
the PWFA] are removed or alleviated.'' \78\ A modification or
adjustment is reasonable if it ``seems reasonable on its face, i.e.,
ordinarily or in the run of cases;'' this means it is ``reasonable'' if
it appears to be ``feasible'' or ``plausible.'' \79\ An accommodation
also must be effective in meeting the needs of the employee or
applicant, meaning it removes a workplace barrier and provides the
individual with equal opportunity.\80\
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\78\ 29 CFR part 1630 app. 1630.9.
\79\ See supra note 60.
\80\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, at Question 9 and 29 CFR part 1630 app. 1630.9 (providing
that a reasonable accommodation ``should provide the individual with
a disability with an equal employment opportunity. Equal employment
opportunity means an opportunity to attain the same level of
performance, or to enjoy the same level of benefits and privileges
of employment as are available to the average similarly situated
employee without a disability.'').
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Under the PWFA, a reasonable accommodation has the same definition
[[Page 54727]]
as under the ADA.\81\ Therefore, like the ADA, reasonable
accommodations under the PWFA include modifications or adjustments to
the job application process that enable a qualified applicant with a
known limitation to be considered for the position; modifications or
adjustments to the work environment, or to the manner or circumstances
under which the position is done to allow a person with a known
limitation to perform the essential functions of the job; and
modifications or adjustments that enable an employee with a known
limitation to enjoy equal benefits and privileges of employment.\82\
Because the PWFA also provides for reasonable accommodations when a
worker temporarily cannot perform one or more essential functions of a
position but could do so in the near future, reasonable accommodation
under the PWFA also includes modifications or adjustments that allow an
employee with a known limitation to temporarily suspend one or more
essential functions of the position.
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\81\ 42 U.S.C. 2000gg(7).
\82\ 29 CFR 1630.2(o)(1)(i-iii). The requirement for reasonable
accommodations that provide for equal benefits and privileges is
shorthand for the requirement that an accommodation should provide
the individual with an equal employment opportunity (29 CFR part
1630 app. 1630.9). This requirement stems from the ADA's prohibition
on discrimination in ``terms, conditions, and privileges of
employment.'' 42 U.S.C. 12112(a). The PWFA prohibits adverse action
in the terms, conditions, or privileges of employment against a
qualified employee for using or requesting an accommodation and
Title VII--which applies to workers affected by pregnancy,
childbirth, or related medical conditions--prohibits discrimination
in the terms, conditions, and privileges of employment. 42 U.S.C.
2000e-2(a)(1). Based on the text of the PWFA, Title VII, and the
requirement under the PWFA that reasonable accommodation has the
same definition as in the ADA, the same requirement applies. Thus, a
reasonable accommodation under the PWFA includes a change to allow
employees affected by pregnancy, childbirth, or related medical
conditions. nondiscrimination in the terms, conditions, or
privileges of employment or, in shorthand, to enjoy equal benefits
and privileges. See also EEOC Compliance Manual Section 613 Terms,
Conditions, and Privileges of Employment, 613.1(a) (1982) (``terms,
conditions, and privileges of employment'' are ``to be read in the
broadest possible terms'' and ``a distinction is rarely made between
terms of employment, conditions of employment, or privileges of
employment''), https://www.eeoc.gov/laws/guidance/cm-613-terms-
conditions-and-privileges-
employment#:~:text=The%20following%20employment%20practices%20or%20ac
tivities%20which%20are,or%20activity%20is%20considered%20in%20its%20b
road%20sense [hereinafter Compliance Manual on Terms, Conditions,
and Privileges of Employment].
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Additions to the Definition of Reasonable Accommodation
Because 42 U.S.C. 2000gg(7) states that ``reasonable
accommodation'' should have the meaning of the term under the ADA and
the regulations set forth in for the PWFA, the proposed rule takes the
definition of ``reasonable accommodation'' provided in the regulations
implementing the ADA \83\ and makes five additions to apply it in the
context of the PWFA.
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\83\ 29 CFR 1630.2(o).
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First, the proposed rule replaces references to ``individual with a
disability'' and similar terms with ``employee with a known
limitation'' and similar terms.\84\
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\84\ The proposed rule also deletes examples of reasonable
accommodation that are unlikely to be relevant to the PWFA, i.e.,
``provision of qualified readers or interpreters.'' A person covered
by the PWFA who is blind or deaf who needs these reasonable
accommodations because of their disability may be entitled to them
under the ADA. Nothing added or deleted from the PWFA's proposed
list of reasonable accommodations is intended to alter the ADA's
standards. Nor does the exclusion of these reasonable accommodations
mean that they could not be required under the PWFA in appropriate
circumstances, such as when pregnancy exacerbates a pre-existing
medical condition.
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Second, the proposed rule includes an addition to the ADA's
definition of reasonable accommodation that is required by the PWFA. As
explained in the discussion of the term qualified employee above, the
PWFA provides that the temporary suspension of one or more essential
functions is a potential reasonable accommodation by defining
``qualified employee'' to include an employee who cannot perform one or
more essential functions of the position for a temporary period,
provided they could do so in the near future, and the inability to
perform the essential function(s) can be reasonably accommodated
without undue hardship. The proposed rule illustrates the implications,
meaning, and application of this requirement.
Third, the proposed rule incorporates certain examples of
accommodations long recognized by the EEOC as reasonable accommodations
for individuals with disabilities but not explicitly included in the
non-exhaustive examples of reasonable accommodation in the ADA
regulation. These are discussed below in Sec. 1636.3(i).
Fourth, in addition to noting paid leave (whether accrued, short-
term disability, or another type of employer benefit) and unpaid leave
as examples of reasonable accommodations, the proposed rule states that
either type of leave to recover from childbirth is an example of a
potential reasonable accommodation for pregnancy, childbirth, or
related medical conditions. This is explained in more detail below.
Finally, the proposed rule provides details about potential
reasonable accommodations related to lactation.
Alleviating Increased Pain or Risk to Health Due to the Known
Limitation
Under the PWFA and the proposed rule, a worker may seek a
reasonable accommodation in order to alleviate increased pain or
increased risk to health that is attributable to the physical or mental
condition related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions that has been communicated to
the employer (the known limitation).\85\ When dealing with requests for
accommodation concerning the alleviation of increased pain or increased
risk to health associated with a known limitation, the goal is to
provide an accommodation that allows the worker to alleviate the
identified increase in pain or risk to health.
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\85\ Depending on the facts of the case, the accommodation
sought will allow the employee to apply for the position, to perform
the essential functions of the job, to enjoy equal benefits and
privileges of employment, or allow the temporary suspension of an
essential function of the job.
Example 1636.3 #10: Celia is a factory worker whose job requires
her to move boxes that weigh 50 pounds regularly. Prior to her
pregnancy, Celia occasionally felt pain in her knee when she walked
for extended periods of time. After returning to work after having a
cesarean section, Celia's health care provider says she should limit
the tasks that require moving boxes to no more than 30 pounds for
three months because heavier lifting could increase the risk to her
health and recovery. Celia can seek an accommodation that would help
her lift between 30 and 50 pounds because it is needed for her known
limitation related to childbirth. However, the PWFA would not
require the employer to provide an accommodation regarding Celia's
knee pain because that situation is not attributable to Celia's
known limitation, unless there is evidence that the pain in walking
was exacerbated by Celia's pregnancy, childbirth, or related medical
conditions. The employer may have accommodation responsibilities
regarding Celia's knee pain under the ADA.
Example 1636.3 #11: Lucille has opioid use disorder that she
controls with medication. After giving birth, she experiences
postpartum depression. As a result, she is put on an additional
medication that she must take with food, and she starts therapy with
a new provider. Under the PWFA, Lucille requests that she be allowed
to take breaks to eat when she needs to take her medication and that
she be allowed to use intermittent leave to attend her therapy
appointments. Under the PWFA, the employer is required to provide
the requested accommodations (or other reasonable ones) absent undue
hardship. The employer does not have to provide an accommodation for
Lucille's underlying opioid use disorder under the
[[Page 54728]]
PWFA, although it may have accommodation responsibilities under the
ADA.
Example 1636.3 #12: Jackie's position at a fabrication plant
involves working with certain chemicals, which Jackie thinks is the
reason she has a nagging cough and chapped skin on her hands. Once
she becomes pregnant, Jackie seeks the accommodation of a temporary
suspension of an essential function of working with the chemicals
because the chemicals create an increased risk to her pregnancy. The
employer provides the accommodation. After Jackie gives birth and
returns to work, she no longer has any known limitations. Thus, she
can be assigned to work with the chemicals again even if she would
rather not do that work, because the PWFA only requires an employer
to provide an accommodation that is needed due to the known
limitation related to pregnancy, childbirth, or related medical
conditions. Jackie's employer may also have accommodation
responsibilities under the ADA.
Example 1636.3 #13: Margaret is a retail worker who is pregnant.
Because of her pregnancy, Margaret feels pain in her back and legs
when she has to move stacks of clothing from one area to the other,
which is one of the essential functions of her position. She can
still manage to move the clothes, but, because of the pain, she
requests a cart to use when she is moving the garments. Under the
PWFA, the employer is required to provide the requested
accommodation (or another reasonable accommodation), absent undue
hardship, because doing so accommodates Margaret's limitation
arising out of her pregnancy. If Margaret also has wrist pain that
is not caused or exacerbated by the pregnancy, Margaret's employer
is under no obligation under the PWFA to provide an accommodation
for the wrist pain because it is not related to, affected by, or
arising out of pregnancy, childbirth, or related medical conditions.
However, the employer may have accommodation responsibilities
regarding Margaret's wrist pain under the ADA.
Particular Matters Regarding Leave as a Reasonable Accommodation
The Commission has long recognized the use of all forms of paid and
unpaid leave as a potential reasonable accommodation under the ADA,
including for part-time schedules.\86\ Given Congress' extensive use of
ADA terms and provisions in the PWFA--including specifically the
definition of ``reasonable accommodation''--the Commission proposes to
include these potential reasonable accommodations in this proposal's
definition of reasonable accommodation.
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\86\ See 29 CFR 1630.2(o)(2)(ii); 29 CFR part 1630 app.
1630.2(o); Enforcement Guidance on Reasonable Accommodation, supra
note 44, at text accompanying nn.48-49.
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Leave, including intermittent leave, may be a reasonable
accommodation even if the covered entity does not offer it as an
employee benefit.\87\ If an employee requests leave as an accommodation
or if there is no other reasonable accommodation that does not cause an
undue hardship, the covered entity must consider providing leave as a
reasonable accommodation under the PWFA, even if the employee is not
eligible for leave under the employer's leave policy or the employee
has exhausted the leave the covered entity provides as a benefit
(including leave exhausted under a workers' compensation program, the
FMLA, or similar State or local laws).\88\
---------------------------------------------------------------------------
\87\ See Technical Assistance on Employer-Provided Leave, supra
note 55, at text above Example 4.
\88\ Id. Of course, if an employee has a right to leave under
the FMLA, an employer policy, or a State or local law, the employee
is entitled to leave regardless of whether they request leave as a
reasonable accommodation. An employee who needs leave beyond what
they are entitled to under those laws or policies will need to
request leave as a reasonable accommodation.
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The proposed rule also provides that leave to recover from
childbirth, miscarriage, stillbirth, or other related conditions is a
potential reasonable accommodation (absent undue hardship).\89\ The
proposed rule further explains that workers protected by the PWFA must
be permitted to choose whether to use paid leave (whether accrued, as
part of a short-term disability program, or as part of any other
employee benefit) or unpaid leave to the same extent that the covered
entity allows employees using leave for reasons unrelated to pregnancy,
childbirth, or related medical conditions to choose between these
various types of leave.\90\ However, as under the ADA, an employer is
not required to provide additional paid leave under the PWFA beyond the
amount to which the employee is otherwise entitled.
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\89\ H.R. Rep. No. 117-27, pt. 1, at 29 (noting that ``leave is
one possible accommodation under the PWFA, including time off to
recover from delivery'').
\90\ A failure to allow a worker affected by pregnancy,
childbirth, or related medical conditions to use paid or unpaid
leave to the same extent that the covered entity allows employees
using leave for reasons unrelated to pregnancy, childbirth, or
related medical conditions to do so may be a violation of Title VII
as well.
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The Commission recognizes that there may be situations where an
employer accommodates a pregnant employee with a stool or additional
breaks or temporarily suspends one or more essential functions under
the PWFA, and then the employee requests leave to recover from
childbirth. In these situations, the covered entity should consider the
request for the reasonable accommodation of leave to recover from
childbirth in the same manner that it would any other request for leave
as a reasonable accommodation. This requires first considering whether
the employee will be able to perform the essential functions of the
position with or without a reasonable accommodation after the period of
leave, or, if not, whether, after the period of leave, the employee
will meet the second definition of ``qualified'' under the PWFA.
Under the ADA regulations, a reasonable accommodation cannot excuse
an employee from complying with valid production standards that are
applied uniformly to all employees.\91\ However, for example, when the
reasonable accommodation is leave, the employee may not be able to meet
a production standard during the period of leave or, depending on the
length of the leave, meet that standard for a defined period of time
(e.g., the production standard measures production in one year and the
employee was on leave for four months). Thus, if the reasonable
accommodation is leave, the production standard may need to be prorated
to account for the reduced amount of time the employee worked.\92\ For
example, if a call center employee with a known limitation requests and
is granted two hours of leave in the afternoon for rest, the employee's
required number of calls may need to be reduced proportionately, as
could the employee's pay. Alternatively, the accommodation could allow
for the employee to make up the time at a different time during the day
so that the employee's production standards and pay would not be
reduced.
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\91\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, at text accompanying n.14.
\92\ Id. at Question 19.
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As under the ADA, an employee with a known limitation who is
granted leave as a reasonable accommodation under the PWFA is entitled
to return to their same position unless the employer demonstrates that
holding open the position would impose an undue hardship.\93\ Likewise,
an employer must continue an employee's health insurance benefits
during their leave period to the extent that it does so for other
employees in a similar leave status. When the employee is ready to
return to work, the employer must allow the individual to return to the
same
[[Page 54729]]
position (assuming that there was no undue hardship in holding it open)
if the employee is still qualified (i.e., the employee can perform the
essential functions of the position with or without reasonable
accommodation or if the employee meets the PWFA's second definition of
qualified).\94\
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\93\ See id. at Question 18. As under the ADA, if an employer
cannot hold a position open during the entire leave period without
incurring undue hardship, the employer must consider whether it has
a vacant, equivalent position for which the employee is qualified
and to which the employee can be reassigned to continue their leave
for a specific period of time and then, at the conclusion of the
leave, can be returned to this new position.
\94\ Id. at Question 21.
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Under the PWFA, an employer may deny a reasonable accommodation if
it causes an undue hardship--a significant difficulty or expense. Thus,
if an employer can demonstrate that the leave requested as a reasonable
accommodation poses an undue hardship--for example, because of its
length, frequency, or unpredictable nature, or because of another
factor--it may lawfully deny the requested leave under the PWFA.
Ensuring That Workers Are Not Penalized for Using Reasonable
Accommodations
Covered entities making reasonable accommodations must ensure that
their ordinary workplace policies or practices do not operate to
penalize employees for utilizing such accommodations. For example, when
a reasonable accommodation involves a pause in work--such as a break, a
part-time or other reduced work schedule, or leave--an employee cannot
be penalized for failing to perform work during such a non-work period.
Similarly, policies that monitor workers for time on task (whether
through automated means or otherwise) and penalize them for being off
task may need to be modified to avoid imposing penalties for non-work
periods that the employee was granted as a reasonable accommodation.
Likewise, if an accommodation under the PWFA involves the temporary
suspension of an essential function of the position, a covered entity
may not penalize an employee for not performing the essential function
that has been temporarily suspended.
Penalizing an employee in these situations would be retaliation for
the employee's use of a reasonable accommodation to which they are
entitled under the law.\95\ It would also render the accommodation
ineffective, thus making the covered entity liable for failing to
provide a reasonable accommodation.\96\ The Commission seeks comment on
whether there are other situations where this may apply and whether
examples would be helpful to illustrate this point.
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\95\ Id. at Question 19; see also 2000gg-1(5), 2000gg-2(f) and
the accompanying regulations.
\96\ Id. at Question 19.
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Personal Use
The obligation to provide reasonable accommodation under the PWFA,
like the ADA, does not extend to the provision of adjustments or
modifications that are primarily for the personal benefit of the
individual with a known limitation. However, adjustments or
modifications that might otherwise be considered personal may be
required as reasonable accommodations ``where such items are
specifically designed or required to meet job-related rather than
personal needs.'' \97\
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\97\ 29 CFR part 1630 app. 1630.9.
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For example, if a warehouse employee is pregnant and is having
difficulty sleeping, the PWFA would not require as a reasonable
accommodation for the employer to provide a pregnancy pillow and a
white noise machine to help with sleeping because they are strictly for
an employee's personal use. However, allowing the employee some
flexibility in start times for the workday may be a reasonable
accommodation because it modifies an employment-related policy. In a
different context, if the employee who is having trouble sleeping works
at a job that involves sleeping between shifts on-site, such as a job
as a firefighter, sailor, emergency responder, health care worker, or
truck driver, a pregnancy pillow may be a reasonable accommodation
because the employee is having a difficult time sleeping because of the
pregnancy, the employer is providing the place and items necessary for
sleeping, and the employee needs a modification of the items and place.
All Services and Programs
Under the PWFA, as under the ADA, the obligation to make reasonable
accommodation applies to all services and programs and to all non-work
facilities provided or maintained by an employer for use by its
employees so that employees or applicants with known limitations can
enjoy equal benefits and privileges of employment.\98\ Accordingly, the
obligation to provide reasonable accommodation, barring undue hardship,
includes providing access to employer-sponsored placement or counseling
services, such as employee assistance programs, and to employer-
provided cafeterias, lounges, gymnasiums, auditoriums, transportation,
and to similar facilities, services, or programs.\99\
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\98\ Id.
\99\ Id.
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Interim Reasonable Accommodation
Providing an interim reasonable accommodation is a best practice
under the PWFA in certain circumstances.\100\ An employee may have an
urgent need for a reasonable accommodation due to the nature or sudden
onset of a known limitation under the PWFA. For example, a pregnant
employee may experience vaginal bleeding, which may indicate a more
serious problem. Upon discovering the bleeding, the employee may ask
for immediate leave to go see their health care provider. The employee
then may need additional leave, telework, rest breaks, or a later start
time, beginning immediately. In this situation, a covered entity, as a
best practice, should consider providing an interim reasonable
accommodation that meets the employee's needs while the interactive
process is conducted. Similarly, an employee recovering from childbirth
may ask for the reasonable accommodation of more frequent or longer
bathroom breaks, and the covered entity should consider meeting that
need, as an interim reasonable accommodation, before the conclusion of
the interactive process. Covered entities that do not provide interim
reasonable accommodations are reminded that an unnecessary delay in the
interactive process or providing a reasonable accommodation may lead to
liability under 42 U.S.C. 2000gg-1(1) even if the reasonable
accommodation is eventually granted, as explained in detail in Sec.
1636.4(a) of the proposed regulation.
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\100\ The same is true under the ADA. EEOC, Final Report on Best
Practices for Employment of People with Disabilities in the State
Government II.B.1 (2005), <a href="http://www.eeoc.gov/laws/guidance/final-report-best-practices-employment-people-disabilities-state-government">http://www.eeoc.gov/laws/guidance/final-report-best-practices-employment-people-disabilities-state-government</a> [hereinafter Best Practices State Government] (noting
that ``[t]emporary accommodations may enable a worker who has made a
request for reasonable accommodation under the ADA to continue
working while a final determination of whether to grant or deny the
accommodation is being made'').
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1636.3(i) Reasonable Accommodation--Examples
The definition of ``reasonable accommodation'' in the proposed PWFA
rule incorporates certain accommodations long recognized by the EEOC as
reasonable accommodations but not explicitly included in the non-
exhaustive examples of reasonable accommodations in the ADA regulation.
The inclusion of these possible reasonable accommodations in the
proposed regulation also helps to meet the requirement in 42 U.S.C.
2000gg-3 that EEOC's regulations provide examples of reasonable
accommodations addressing known
[[Page 54730]]
limitations related to pregnancy, childbirth, or related medical
conditions. The Commission notes that an employee or applicant may need
more than one of these accommodations at the same time or as a
pregnancy progresses.
<bullet> Frequent breaks. The EEOC has long construed the ADA to
require additional breaks as a reasonable accommodation, absent undue
hardship.\101\ For example, a pregnant employee might need more
frequent breaks due to shortness of breath; an employee recovering from
childbirth might need more frequent restroom breaks or breaks due to
fatigue because of recovery from childbirth; or an employee who is
lactating might need more frequent breaks for water or food.\102\
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\101\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, at Question 22; see also See H. R. Rep. 117-27, pt. 1, at
22; 168 Cong. Rec. S7,048 (daily ed. Dec. 8, 2022) (statement of
Sen. Robert P. Casey, Jr.); 168 Cong. Rec. S10,081 (daily ed. Dec.
22, 2022) (statement of Sen. Robert P. Casey, Jr.).
\102\ Breaks may be paid or unpaid depending on the employer's
normal policies and other applicable laws. Breaks may exceed the
number that an employer normally provides because reasonable
accommodations may require an employer to alter its policies,
barring undue hardship.
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<bullet> Sitting/Standing. The Commission has recognized the
provision of seating for jobs that require standing and standing for
those that require sitting as a potential reasonable accommodation
under the ADA.\103\ Reasonable accommodation of these needs might
include, but is not limited to, policy modifications and the provision
of equipment, such as seating, a sit/stand desk, or anti-fatigue floor
matting, among other possibilities.
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\103\ See Enforcement Guidance on Reasonable Accommodation,
supra note 44, at General Principles, Example B; see also H.R. Rep.
No. 117-27, pt. 1, at 11, 22, 29.
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<bullet> Schedule changes, part-time work, and paid and unpaid
leave. The Appendix to the ADA Regulations explains that permitting the
use of paid leave (whether accrued, as part of a short-term disability
program, or as part of any other employee benefit) or providing
additional unpaid leave is a potential reasonable accommodation under
the ADA.\104\ Additionally, the Appendix recognizes that leave for
medical treatment can be a reasonable accommodation.\105\ By way of
example, an employee could need a schedule change to attend a round of
IVF appointments to get pregnant; a part-time schedule to address
fatigue during pregnancy; or additional unpaid leave for recovery from
childbirth, medical treatment, post-partum treatment or recuperation
related to a cesarean section, episiotomy, infection, depression,
thyroiditis, or preeclampsia.
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\104\ 29 CFR part 1630 app. 1630.2(o); see also Technical
Assistance on Employer-Provided Leave, supra note 55. Additionally,
an employer prohibiting a worker from using accrued leave for
pregnancy-related reasons or while allowing other workers to use
leave for similar reasons may also violate Title VII.
\105\ 29 CFR part 1630 app. 1630.2(o).
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<bullet> Telework. Telework or ``work from home'' has been
recognized by the EEOC as a potential reasonable accommodation.\106\
Telework could be used to accommodate, for example, a period of bed
rest or a mobility impairment.
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\106\ See, e.g., Enforcement Guidance on Reasonable
Accommodation, supra note 44, at Question 34.
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<bullet> Parking. Providing reserved parking spaces if the employee
is otherwise entitled to use employer-provided parking may be
reasonable accommodation to assist a worker who is experiencing fatigue
or limited mobility because of pregnancy, childbirth, or related
medical conditions.
<bullet> Light duty. Assignment to light duty or placement in a
light duty program has been recognized by the EEOC as a potential
reasonable accommodation under the ADA, even if the employer's light
duty positions are normally reserved for those injured on-the-job and
the person with a disability seeking a light duty position does not
have a disability stemming from an on-the-job injury.\107\
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\107\ EEOC, Enforcement Guidance: Workers' Compensation, supra
note 20, at Question 28; see also 168 Cong. Rec. S7,048 (daily ed.
Dec. 8, 2022) (statement of Sen. Robert P. Casey, Jr.) (``What are
other types of reasonable accommodations that pregnant workers may
request? Light duty is a common example.''); id. at S7,049
(statement of Sen. Patty Murray) (noting that workers need
accommodations because ``their doctors say they need to avoid heavy
lifting''); H.R. Rep.117-27, pt. 1, at 14-17 (discussing Young v.
United Parcel Serv., Inc., 575 U.S. 206 (2015), a case involving
light duty for pregnant workers).
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<bullet> Making existing facilities accessible or modifying the
work environment.\108\ Examples of reasonable accommodations might
include allowing access to an elevator not normally used by employees;
moving the employee's workspace closer to a bathroom; providing a fan
to regulate temperature; or moving a pregnant or lactating employee to
a different workspace to avoid exposure to chemical fumes. As noted in
the proposed regulation, this also may include modifications of the
work environment to allow an employee to pump breast milk at work.\109\
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\108\ 29 CFR 1630.2(o)(1)(ii); (2)(i).
\109\ On December 29, 2022, President Biden signed the Providing
Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) (Pub.
L. 117-328 Division KK). The law extended coverage of the Fair Labor
Standards Act's (FLSA) protections for nursing employees to apply to
most workers. The FLSA provides most workers with the right to break
time and a place to pump breast milk at work. 29 U.S.C. 218d; U.S.
Dep't of Lab., Fact Sheet #73: FLSA Protections for Employees to
Pump Breast Milk at Work (Jan. 2023), <a href="https://www.dol.gov/agencies/whd/pump-at-work">https://www.dol.gov/agencies/whd/pump-at-work</a>.2023), <a href="https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers">https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers</a>. Employees who are not
covered by the PUMP Act or employees who seek to pump longer than
one year may seek reasonable accommodations regarding pumping under
the PWFA. Further, employees who are covered by the PUMP Act may
seek additional related accommodations, such as access to a sink, a
refrigerator, and electricity. See, e.g., U.S. Dep't of Lab., Notice
on Reasonable Break Time for Nursing Mothers, 75 FR 80073, 80075-76
(Dec. 21, 2010) (discussing space requirements and noting factors
such as the location of the area for pumping compared to the
employee's workspace, the availability of a sink and running water,
the location of a refrigerator to store milk, and electricity may
affect the amount break time needed). The PUMP Act is enforced by
the Department of Labor, not the EEOC.
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<bullet> Job restructuring.\110\ Job restructuring might involve,
for example, removing a marginal function that required a pregnant
employee to climb a ladder or occasionally retrieve boxes from a supply
closet.
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\110\ 29 CFR 1630.2 (o)(2)(ii).
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<bullet> Temporarily suspending one or more essential functions.
For some positions, this may mean that one or more essential functions
are temporarily suspended, and the employee continues to perform the
remaining functions of the job. For others, the essential function(s)
will be temporarily suspended, and the employee may be assigned other
tasks. For others, the essential function(s) will be temporarily
suspended, and the employee may perform the functions of a different
job to which the employer temporarily transfers or assigns them. For
yet others, the essential function(s) will be temporarily suspended,
and the employee will participate in the employer's light or modified
duty program.
<bullet> Acquiring or modifying equipment, uniforms, or
devices.\111\ Examples of reasonable accommodations might include
providing uniforms and equipment, including safety equipment, that
account for changes in body size during and after pregnancy, including
during lactation; providing devices to assist with mobility, lifting,
carrying, reaching, and bending; or providing an ergonomic keyboard to
accommodate pregnancy-related hand swelling or tendonitis.
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\111\ Id.
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<bullet> Adjusting or modifying examinations or policies.\112\
Examples of reasonable accommodations include
[[Page 54731]]
allowing workers with a known limitation to postpone an examination
that requires physical exertion. Adjustments to policies also could
include increasing the time or frequency of breaks to eat or drink or
to use the restroom.
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\112\ Id.
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The proposed PWFA rule includes these additional examples in the
regulatory language.
Below the Commission provides some examples of types of reasonable
accommodations and how they can be analyzed. The Commission seeks
comment on whether more examples would be helpful and, if so, the types
of conditions and accommodations that should be the focus of the
additional examples.
Examples of Types of Reasonable Accommodations
Example 1636.3 #14/Telework: Gabriela, a billing specialist in a
doctor's office, experiences nausea and vomiting beginning in her
first trimester of pregnancy. Her doctor believes the nausea and
vomiting will pass within a couple of months. Because the nausea
makes commuting extremely difficult, Gabriela makes a verbal request
to her manager stating she has nausea and vomiting due to her
pregnancy and requests that she be permitted to work from home for
the next two months so that she can avoid the difficulty of
commuting. The billing work can be done from her home or in the
office.
1. Known limitation: Gabriela's nausea and vomiting is a
physical condition related to pregnancy; Gabriela needs an
adjustment or change at work; Gabriela has communicated the
information to the employer.
2. Qualified: Gabriela can do the billing work with the
reasonable accommodation of telework.
3. The employer must grant the accommodation (or another
reasonable accommodation) absent undue hardship.
Example 1636.3 #15/Temporary Suspension of an Essential
Function: Nisha, a nurse assistant working in a large elder care
facility, is advised in the fourth month of pregnancy to stop
lifting more than 25 pounds for the rest of the pregnancy. One of
the essential functions of the job is to assist patients in dressing
and bathing, and moving them from or to their beds, tasks that
typically require lifting more than 25 pounds. Nisha sends an email
to human resources asking that she not be required to lift more than
25 pounds for the remainder of her pregnancy and requesting a place
in the established light duty program under which workers who are
hurt on the job take on different duties while coworkers take on
their temporarily suspended duties.
1. Known limitation: Nisha's lifting restriction is a physical
condition related to pregnancy; Nisha needs an adjustment or change
at work; Nisha has communicated that information to the employer.
2. Qualified: Nisha is asking for the suspension of an essential
function. The suspension is temporary, and Nisha could perform the
essential functions of the job ``in the near future'' (generally
within forty weeks). It appears that the inability to perform the
function can be reasonably accommodated through its temporary
suspension and Nisha's placement in the established light duty
program.
3. The employer must grant the reasonable accommodation of
temporarily suspending the essential function, or another reasonable
accommodation, absent undue hardship. As part of the temporary
suspension, the employer may assign Nisha to the light duty program.
Example 1636.3 #16: Same facts as above but the employer
establishes the light duty program is limited to 10 slots and that
all 10 slots are filled for the next 6 months. In these
circumstances, the employer must consider other possible reasonable
accommodations, such as the temporary suspension of an essential
function without assigning Nisha to the light duty program, or job
restructuring outside of the established light duty program. If such
accommodations cannot be provided without undue hardship, then the
employer must consider a temporary reassignment to a vacant position
for which Nisha is qualified, with or without reasonable
accommodation. For example, if the employer has a vacant position
that does not require lifting patients which Nisha could perform
with or without a reasonable accommodation, the employer must offer
her the temporary reassignment as a reasonable accommodation, absent
undue hardship.
Example 1636.3 #17/Assistance with Performing an Essential
Function: Mei, a warehouse worker, requests via her employer's
online accommodation process that a dolly be provided to assist her
in moving items that are bulky to accommodate her post-cesarean
section medical restrictions for three months.
1. Known Limitation: Mei's need for assistance in moving bulky
items is a physical condition related to childbirth; Mei needs an
adjustment or change at work; Mei has communicated this information
to the employer.
2. Qualified: Mei could perform the essential functions of her
position with the reasonable accommodation of a dolly.
3. The employer must grant the accommodation (or another
reasonable accommodation) absent undue hardship.
Example 1636.3 #18/Appropriate Uniform and Safety Gear: Ava, a
pregnant police officer, asks their union representative for help
getting a larger size uniform and larger size bullet proof vest in
order to cover their growing pregnancy. The union representative
asks management for an appropriately sized uniform and vest for Ava.
1. Known Limitation: Ava's inability to wear the standard
uniform and safety gear is a physical condition related to
pregnancy; Ava needs an adjustment or change at work; Ava's
representative has communicated this information to the employer.
2. Qualified: Ava is qualified with the reasonable accommodation
of appropriate gear.
3. The employer must grant the accommodation (or another
reasonable accommodation) absent undue hardship.
Example 1636.3 #19/Temporary Suspension of Essential
Function(s): Darina, a pregnant police officer in the third month of
pregnancy, talks to human resources about being taken off of patrol
and put on light duty for the remainder of her pregnancy to avoid
physical altercations such as subduing suspects that may harm her
pregnancy. The department has an established light duty program that
it uses for officers with injuries that occurred on the job.
1. Known Limitation: Darina has a need or a problem related to
maintaining the health of her pregnancy; Darina needs an adjustment
or change at work; Darina has communicated this information to the
employer.
2. Qualified: The suspension of the essential functions of
patrol duties is temporary and could end ``in the near future''
(within generally forty weeks) And it appears that the temporary
suspension of the essential function can be accommodated through the
light duty program.
3. The employer must grant the accommodation (or another
reasonable accommodation) absent undue hardship. In determining if
there is an undue hardship, the employer cannot rely on the fact
that this type of modification is normally reserved for those with
on-the-job injuries. The fact that the employer provides this type
of modification for other employees points to this not being an
undue hardship.
Example 1636.3 #20/Temporary Suspension of Essential
Function(s): Rory works in a fulfillment center where she is usually
assigned to a line where she has to move packages that weigh 20
pounds. After returning from work after giving birth, Rory has a
lifting restriction of 10 pounds due to sciatica during her
pregnancy. The restriction is for 12 weeks. The employer does not
have an established light duty program. There are other lines in the
warehouse that do not require lifting more than 10 pounds and some
of the packages on Rory's usual line weigh less than 10 pounds.
1. Known Limitation: Rory has a known limitation related to
pregnancy, childbirth, or a related medical condition.
2. Qualified: The suspension of the essential function of
lifting packages that weigh up to 20 pounds is temporary and Rory
could be able to perform the essential function in the near future.
It appears that the temporary suspension of the essential function
could be accommodated by temporarily suspending the requirement that
Rory lift more than 10 pounds or by assigning her to a different
line.
3. The employer must grant the accommodation (or another
reasonable accommodation) absent undue hardship.
Example 1636.3 #21/Unpaid Leave: Tallah, a newly hired cashier
at a small bookstore, has a miscarriage in the third month of
pregnancy and asks a supervisor for ten days of leave to recover. As
a new employee, Tallah has only earned 2 days of paid leave. The
employer is not covered by the FMLA and does not have a company
policy regarding the provision of unpaid leave, but Tallah is
covered by the PWFA.
1. Known limitation: Tallah's need to recover from the
miscarriage is a physical or mental condition related to pregnancy
or arising out of a medical condition related to
[[Page 54732]]
pregnancy; Tallah needs an adjustment or change at work; Tallah has
communicated this information to the employer.
2. Qualified: After the reasonable accommodation of leave,
Tallah will be able to do the essential functions of the position
with or without accommodation.
3. The employer must grant the accommodation of unpaid leave (or
another reasonable accommodation) absent an undue hardship.
Example 1636.3 #22/Unpaid Leave for Prenatal Appointments:
Margot started working at a retail store shortly after she became
pregnant. She has an uncomplicated pregnancy. Because she has not
worked at the store very long, she has earned very little leave and
is not covered by the FMLA. In her fifth month of pregnancy, she
asks her supervisor for the reasonable accommodation of unpaid time
off beyond the leave she has earned to attend her regularly
scheduled prenatal appointments.
1. Known limitation: Margot's need to attend health care
appointments is a need or a problem related to maintaining her
health or the health of her pregnancy; Margot needs an adjustment or
change at work; Margot has communicated the information to the
employer.
2. Qualified: Margot can do her job with the reasonable
accommodation of leave to attend health care appointments.
3. The employer must grant the accommodation of unpaid time off
(or another reasonable accommodation) absent undue hardship.
Example 1636.3 #23/Unpaid Leave for Recovery from Childbirth:
Sofia, a custodian, is pregnant and will need six to eight weeks of
leave to recover from childbirth. Sofia is nervous about asking for
leave so Sofia asks her mother, who knows the owner, to do it for
her. The employer has a sick leave policy but no policy for longer
periods of leave. Sofia does not qualify for FMLA leave.
1. Known limitation: Sofia's need to recover from childbirth is
a physical condition; Sofia needs an adjustment or change at work;
Sofia's representative has communicated this information to the
employer.
2. Qualified: After the reasonable accommodation of leave, Sofia
will be able to do the essential functions of the position.
3. The employer must grant the accommodation of unpaid leave (or
another reasonable accommodation) absent undue hardship.
Example 1636.3 #24/Unpaid Leave for Medical Appointments:
Taylor, a newly hired member of the waitstaff, requests time off to
attend therapy appointments for postpartum depression. As a new
employee, Taylor has not yet accrued sick or personal leave and is
not covered by the FMLA. Taylor asks her manager if there is some
way that she can take time off.
1. Known limitation: Taylor's postpartum depression is a medical
condition related to pregnancy, and she is seeking health care;
Taylor needs an adjustment or change at work; Taylor has
communicated this information to the employer.
2. Qualified: Taylor can do the essential functions of the job
with a reasonable accommodation of time off to attend the therapy
appointments.
3. The employer must grant the accommodation of unpaid leave (or
another reasonable accommodation) absent an undue hardship.
Example 1636.3 #25/Unpaid Leave or Schedule Change: Claudine is
six months pregnant and needs to have regular check-ups. The clinic
where Claudine gets her health care is an hour drive away, and they
frequently get backed up and she has to wait for her appointment.
Depending on the time of day, between commuting to the appointment,
waiting for the appointment, and seeing her provider, Claudine may
miss all or most of an assigned day at work. Claudine is not covered
by the FMLA and does not have any sick leave left. Claudine asks
human resources for a reasonable accommodation such as time off or
changes in scheduling so she can attend her medical appointments.
1. Known limitation: Claudine needs health care related to her
pregnancy; Claudine needs an adjustment or change at work; Claudine
has communicated that information to the employer.
2. Qualified: Claudine can do the essential functions of the job
with a reasonable accommodation of time off or a schedule change to
attend medical appointments.
3. The employer must grant the accommodation of time off or a
schedule change (or another reasonable accommodation) absent undue
hardship.
Example 1636.3 #26/Telework: Raim, a social worker, is in the
seventh month of pregnancy and is very fatigued as a result. She
asks her supervisor if she can telework and see clients virtually so
she can rest between appointments.
1. Known limitation: Raim's fatigue is a physical condition
related to pregnancy; Raim needs an adjustment or change at work;
Raim has communicated that information to the employer.
2. Qualified: Assuming the appointments can be conducted
virtually, Raim can perform the essential functions of her job with
the reasonable accommodation of working virtually. If there are
certain appointments that must be done in person, the reasonable
accommodation could be a few days of telework a week and then other
accommodations that would give Raim time to rest, such as assigning
Raim in-person appointments at times when traffic will be light so
that they are easy to get to or setting up Raim's assignments so
that on the days when she has in-person appointments she has breaks
between them. Or the reasonable accommodation could be the temporary
suspension of the essential function of in-person appointments.
3. The employer must grant the accommodation (or another
reasonable accommodation) absent undue hardship.
Example 1636.3 #27/Temporary Workspace/Possible Temporary
Suspension of an Essential Function: Brooke, a pregnant research
assistant in her first trimester of pregnancy, asks the lead
researcher on the project for a temporary workspace that would allow
her to work in a well-ventilated area because her work involves
hazardous chemicals that her health care provider has told her to
avoid. She also points out that there are several research projects
she can work on that do not involve exposure to hazardous chemicals.
1. Known limitation: Brooke's need to avoid the chemicals is a
physical or mental condition related to maintaining the health of
her pregnancy; Brooke needs a change or adjustment at work; Brooke
has communicated this information to the employer.
2. Qualified: If working with hazardous chemicals is an
essential function of the job, Brooke may be able to perform that
function with the accommodation of a well-ventilated work area. If
providing a well-ventilated work area would be an undue hardship,
Brooke could still be qualified with the temporary suspension of the
essential function of working with the hazardous chemicals because
Brooke's inability to work with hazardous chemicals is temporary,
and Brooke could perform the essential functions in the near future
(within generally forty weeks). And it appears that her need to
avoid exposure to hazardous chemicals could also be accommodated by
allowing her to focus on the other research projects.
3. The employer must provide an accommodation such as a well-
ventilated space or another reasonable one, absent undue hardship.
If the employer cannot accommodate Brooke in a way that allows
Brooke to continue to perform the essential functions of the
position, the employer must consider alternative reasonable
accommodations, including temporarily suspending one or more
essential function(s), absent undue hardship.
Example 1636.3 #28/Temporary Transfer to Different Location:
Katherine, a budget analyst who has cancer, is also pregnant, which
creates complications for her treatment. She asks the manager for a
temporary transfer to an office in a larger city that has a medical
center that can address her medical needs due to the combination of
cancer and pregnancy.
1. Known limitation: Katherine has a need or problem related to
maintaining her health or the health of her pregnancy; Katherine
needs a change or adjustment at work: Katherine has communicated
that information to the employer.
2. Qualified: Katherine is able to do the essential functions of
her position with the reasonable accommodation of a temporary
transfer to a different location.
3. As under the ADA, a PWFA reasonable accommodation can include
a workplace change to facilitate medical treatment, including
accommodations such as leave, a schedule change, or a temporary
transfer to a different work location needed in order to obtain
treatment. The employer must grant the accommodation (or another
reasonable accommodation) absent undue hardship.
Example 1636.3 #29/Pumping Breast Milk: Salma gave birth
thirteen months ago and wants to be able to pump breast milk at
work. Salma works at an employment agency that sends her to
different jobs for a day or week at a time. Salma asks the person at
the agency who makes her assignments to only assign her to employers
who will allow her to take a break to pump breast milk at work.
[[Page 54733]]
1. Known limitation: Salma's need to express breast milk is a
physical condition related to lactation which is a related medical
condition; Salma needs a change or adjustment at work; Salma has
communicated this information to the covered entity.
2. Qualified: Salma is able to perform the functions of the jobs
to which she is assigned with the reasonable accommodation of being
assigned to workplaces that will allow her to pump at work.
3. The agency must grant the accommodation (or another
reasonable accommodation) absent undue hardship.
Example 1636.3 #30/Additional Breaks: Afefa, a pregnant customer
service agent, requests two additional 10-minute rest breaks and
additional bathroom breaks as needed during the workday. The
employer determines that these breaks would not pose an undue
hardship and grants the request. Because of the additional breaks,
Afefa responds to three fewer calls during a shift. Afefa's
supervisor should evaluate her performance taking into account her
productivity while on duty, excluding breaks. Penalizing an employee
for failing to meet production standards due to receipt of
additional breaks as a reasonable accommodation would render the
additional breaks an ineffective accommodation. It also may
constitute retaliation for use of a reasonable accommodation.
However, if there is evidence that Afefa's lower production was due
not to the additional breaks, but rather to misconduct (for example,
if she has frequent and unexcused absences to make or receive
personal phone calls) or other performance issues, the employer may
consider the lower production levels consistent with the employer's
production and performance standards.
1636.3(j) Undue Hardship
The PWFA at 42 U.S.C. 2000gg(7) uses the definition of ``undue
hardship'' from section 101 of the ADA. The PWFA provides that the term
shall be construed under the PWFA as it is under the ADA and as set
forth in these regulations. The proposed rule, at (j)(1) of this
paragraph, reiterates the definition of undue hardship provided in the
ADA regulations, which explains that undue hardship means significant
difficulty or expense incurred by a covered entity. The proposed rule
then, at (j)(2) of this paragraph, outlines some factors to be
considered when determining if undue hardship exists.\113\
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\113\ 29 CFR 1630.2(p).
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Consistent with the ADA, a covered entity that claims that a
reasonable accommodation will cause an undue hardship must consider
whether there are other reasonable accommodations it can provide,
absent undue hardship.\114\ Additionally, if the employer can only
provide a part of the reasonable accommodation absent undue hardship--
for example, the employer can provide six weeks of leave absent undue
hardship but the eight weeks that the employee is seeking would cause
undue hardship--the employer must provide the reasonable accommodation
up to the point of creating an undue hardship. Thus, in the example,
the employer would have to provide the six weeks of leave and then
consider if there are other reasonable accommodations it could provide
that would not cause an undue hardship.
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\114\ Enforcement Guidance on Reasonable Accommodations, supra
note 44, at text after n.116.
Example 1636.3 #31/Undue Hardship: Patricia, a convenience store
clerk, requests that she be allowed to go from working full-time to
part-time for the last 3 months of her pregnancy due to extreme
fatigue. The store assigns two clerks per shift, and if Patricia's
hours are reduced, the other clerk's workload will increase
significantly beyond his ability to handle his responsibilities. The
store determines that such an arrangement will result in inadequate
coverage to serve customers in a timely manner, keep the shelves
stocked, and maintain store security. Based on these facts, the
employer likely can show undue hardship based on the significant
disruption to its operations and, therefore, can refuse to reduce
Patricia's hours. The employer, however, should explore whether any
other reasonable accommodation will assist Patricia without causing
undue hardship, such as providing a stool and allowing rest breaks
throughout the shift.
Example 1636.3 #32/Undue Hardship: Shirin, a dental hygienist
who is undergoing IVF treatments, is fatigued and needs to attend
medical appointments near her house every other day. She asks her
supervisor if she can telework for the next 3 months. Full-time
telework may be an undue hardship for the employer because Shirin's
essential functions include treating patients at the dental office.
However, the employer must consider other reasonable accommodations,
such as part-time telework while Shirin can perform the billing
functions of her job, a schedule that would allow Shirin breaks
between patients, part-time work, or a reduced schedule.
An employer's claim that the accommodation a worker seeks would
cause a safety risk to co-workers or clients will be assessed under the
PWFA's undue hardship standard. For example, consider a pregnant worker
in a busy fulfillment center that has narrow aisles between the shelves
of products. The worker asks for the reasonable accommodation of a cart
to use while they are walking through the aisles filling orders. The
employer's claim that the aisles are too narrow and its concern for the
safety of other workers being bumped by the cart would be a defense
based on undue hardship, specifically Sec. 1636.3(j)(2)(v) (``the
impact of the accommodation upon the operation of the facility,
including the impact on the ability of other employees to perform their
duties and the impact on the facility's ability to conduct
business.''). As with other requested reasonable accommodations, if a
particular reasonable accommodation causes an undue hardship because of
safety, the employer must consider if there are other reasonable
accommodations that would not do so. Importantly, claims by employers
that workers create a safety risk merely by being pregnant (as opposed
to a safety risk that stems from a pregnancy-related limitation) should
be addressed under Title VII's bona fide occupational qualification
(BFOQ) standard and not under the PWFA.\115\
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\115\ See, e.g., UAW v. Johnson Controls, 499 U.S. 187 (1991)
(striking down employer's fetal protection policy that limited the
opportunities of women); Everts v. Sushi Brokers LLC, 247 F. Supp.
3d 1075, 1082-83 (D. Ariz. 2017) (relying on Johnson Controls and
denying BFOQ in a case regarding a pregnant worker as a restaurant
server noting that ``[u]nlike cases involving prisoners and dangers
to customers where a BFOQ defense may be colorable, the present
situation is exactly the type of case that Title VII guards
against''); EEOC v. New Prime, Inc., 42 F. Supp. 3d 1201, 1214 (W.D.
Mo. 2014) (relying on Johnson Controls and denying a BFOQ allegedly
in place for the ``privacy'' and ``safety'' of women workers);
Enforcement Guidance on Pregnancy Discrimination, supra note 11, at
I(B)(1)(c).
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1636.3(j)(3) Undue Hardship--Temporary Suspension of an Essential
Function
To address that under the PWFA an employer may have to accommodate
an employee's temporary inability to perform an essential function, the
proposed rule adds additional factors that may be considered when
determining if the temporary suspension of an essential function causes
an undue hardship. These additional factors include consideration of
the length of time that the employee or applicant will be unable to
perform the essential function(s); whether, through the methods listed
in 1636.3(f)(2)(iii) (describing potential reasonable accommodations
related to the temporary suspension of essential functions) or
otherwise, there is work for the employee or applicant to accomplish;
the nature of the essential function, including its frequency; whether
the covered entity has provided other employees or applicants in
similar positions who are unable to perform essential function(s) of
their positions with temporary suspensions of those functions and other
duties; if necessary, whether there are other employees, temporary
employees, or third parties who can perform or be temporarily hired to
perform the essential function(s) in question; and whether the
[[Page 54734]]
essential function(s) can be postponed or remain unperformed for any
length of time and, if so, for how long.
As with other reasonable accommodations, if the covered entity can
establish that accommodating a worker's temporary suspension of an
essential function(s) would impose an undue hardship if extended beyond
a certain period of time, the covered entity would only be required to
provide that accommodation for the period of time that it does not
impose an undue hardship. For example, consider the situation where an
employee seeks to have an essential function suspended for six months.
The employer can go without the function being done for four months,
but after that, it will be an undue hardship. The employer must
accommodate the worker's inability to perform the essential function
for the four months and then consider whether there are other
reasonable accommodations that it can provide, absent undue hardship.
1636.3(j)(4) Undue Hardship--Predictable Assessments
The proposed rule adds to the definition of ``undue hardship'' a
paragraph titled ``predictable assessments.'' The Commission
anticipates that many accommodations sought under the PWFA will be for
modest or minor changes in the workplace for limitations that will be
temporary. Without the accommodation, a pregnant worker may quit their
job or risk their health, thereby frustrating the purpose of the Act.
Thus, in the proposed regulation, the Commission identifies a limited
number of simple modifications that will, in virtually all cases, be
found to be reasonable accommodations that do not impose an undue
hardship when requested by an employee due to pregnancy.
Under the ADA, the Commission has determined that certain
conditions will, in virtually all cases, result in a determination of
coverage as disabilities.\116\ In a similar manner, the Commission
seeks to improve how quickly employees will be able to receive certain
simple, common accommodations for pregnancy under the PWFA and to
reduce litigation. The identification of certain modifications as
``predictable assessments'' does not alter the definition of undue
hardship or deprive a covered entity of the opportunity to bring
forward facts to demonstrate a proposed accommodation imposes an undue
hardship for its business under its own particular circumstances.
Instead, it explains that in virtually all cases a limited number of
simple modifications are reasonable accommodations that do not impose
undue hardship when requested by an employee due to pregnancy.
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\116\ See 29 CFR 1630.2(j)(3). There, as here, the Commission
did not supplant or alter the individualized inquiry required by the
statute but provided common examples to illustrate its application
in frequently occurring circumstances.
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These modifications are: (1) allowing an employee to carry water
and drink, as needed, in the employee's work area; (2) allowing an
employee additional restroom breaks; (3) allowing an employee whose
work requires standing to sit and whose work requires sitting to stand,
and (4) allowing an employee breaks, as needed, to eat and drink.\117\
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\117\ The first and fourth categories of predictable
accommodations are related but separate. The first category of
accommodations addresses a worker's ability to carry water on the
worker's person to where the worker carries out job duties,
facilitating ready access to water without requiring the worker to
take a break to access and drink it. The Commission recognizes that
there may be work locations where, unlike the presence of water in
most (if not all) work locations, the presence of food or non-water
beverages could contribute to an undue hardship due to safety or
other issues, such that a worker must take a break from the location
in which the worker performs her duties in order to access and
consume those items. The fourth category of accommodations addresses
a worker's ability to take additional, short breaks in performing
work (either at the worker's work location or a break location) to
eat and drink (including beverages which are not water).
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The proposed rule includes this addition after reviewing the
information provided by legislators and congressional witnesses that
these changes are regularly requested by pregnant workers and that in
practice these modifications are virtually always reasonable
accommodations that do not impose an undue hardship.\118\ Additionally,
certain State laws that are analogous to the PWFA single out these
modifications as ones that cannot be challenged as an undue hardship or
where different rules regarding documentation may apply.\119\
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\118\ See H.R. Rep.117-27, pt. 1, at 11, 22, 29, 113; Fighting
for Fairness, supra note 2, at 4 (statement of Rep. Suzanne
Bonamici); Long Over Due, supra note 2, at 7 (statement of Rep.
Jerrold Nadler); 25 (statement of Iris Wilbur, Vice President of
Government Affairs and Public Policy, Greater Louisville, Inc.); 83
(statement of Rep. Barbara Lee); 168 Cong. Rec. H10,527 (daily ed.
Dec. 23, 2022) (statement of Rep. Jerrold Nadler); 168 Cong. Rec.
S10,081 (daily ed. Dec. 22, 2022) (statement of Sen. Robert P.
Casey, Jr.); 168 Cong. Rec. S7,079 (daily ed. Dec. 8, 2022)
(statement of Sen. Robert P. Casey, Jr.); 168 Cong. Rec. H2,324
(daily ed. May 14, 2021) (statement of Rep. Suzanne Bonamici).
\119\ See Wash. Rev. Code 43.10.005(1)(d) (prohibiting the undue
hardship defense if the accommodation is frequent, longer, or
flexible restroom breaks; modifying a no food or drink policy;
providing seating or allowing employee to sit more frequently if the
job requires standing; and certain lifting restrictions); Mass. Gen.
Laws ch. 151B(4)(1E)(c) (limiting medical documentation if the
accommodation is more frequent restroom, food, or water breaks, and
certain lifting restrictions).
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Finally, the Commission emphasizes that adoption of the predictable
assessments provision does not alter the meaning of the terms
``reasonable accommodation'' or ``undue hardship.'' Likewise, it does
not change the requirement that, as under the regulation implementing
the ADA, employers must conduct an individualized assessment when
determining whether a modification is a reasonable accommodation that
will impose an undue hardship. Instead, the proposed paragraph informs
covered entities that for these specific and simple modifications, in
virtually all cases, the Commission expects that individualized
assessments will result in a finding that the modification is a
reasonable accommodation that does not impose an undue hardship.
Below, the Commission provides some examples regarding predictable
assessments and how they can be analyzed. The Commission seeks comment
on whether the adoption of the predictable assessment approach
facilitates compliance with the PWFA by identifying some of the
accommodations most commonly requested by workers due to pregnancy that
are simple, inexpensive, and easily available. The Commission further
seeks comment on whether different, fewer, or additional types of
accommodations should be included in the ``predictable assessment''
category and whether the category should include predictable
assessments for childbirth and/or related medical conditions.
Examples Regarding Predictable Assessments
Example 1636.3 #33/Predictable Assessments: Amara, a quality
inspector for a manufacturing company, experiences painful swelling
in her legs, ankles, and feet during the final three months of her
pregnancy. Her job requires standing for long periods of time. Amara
asks the person who assigns her daily work for a stool so that she
can sit while she performs her job. Amara's swelling in her legs and
ankles is a physical condition related to pregnancy. Amara's request
is for a modification that will virtually always be a reasonable
accommodation that does not impose an undue hardship. The employer
argues that it has never provided a stool to any other worker who
complained of difficulty standing but points to nothing that
suggests that this modification is not reasonable or that it would
impose an undue hardship in this particular case on the operation of
the employer's business. The request must be granted.
Example 1636.3 #34/Predictable Assessments: Jazmin, a pregnant
teacher who typically is only able to use the bathroom when her
class is at lunch, requests additional bathroom breaks during her
6th
[[Page 54735]]
month of pregnancy. Additional bathroom breaks are one of the
modifications that will virtually always be found to be a reasonable
accommodation that does not impose an undue hardship. The employer
argues that finding an adult to watch over the teacher's class when
she needs to take a bathroom break imposes an undue hardship, but
Jazmin points out that there are several teachers with nearby
classrooms, some classrooms have aides, and there is an
administrative assistant who works in the front office, and that
with a few minutes' notice, one of them would be able to either
stand in the hallway between classes to allow Jazmin a trip to the
bathroom or, in the case of the administrative assistant, sit in the
teacher's classroom for a few minutes several times a day. The
employer has not established that providing Jazmin with additional
bathroom breaks imposes an undue hardship.
Example 1636.3 #35/Predictable Assessments: Addison, a clerk
responsible for receiving and filing construction plans for
development proposals, needs to maintain a regular intake of water
throughout the day to maintain a healthy pregnancy. They ask their
manager if an exception can be made to the office policy prohibiting
liquids at workstations. The ability to access water during the day
is one of the modifications that will virtually always be found to
be a reasonable accommodation that does not impose an undue
hardship. Here, although the manager decides against allowing
Addison to bring water into their workstation, he proposes that a
table be placed just outside the workstation where water can be
easily accessed and gives permission for Addison to access this
water as needed. The employer has satisfied its obligation to
provide reasonable accommodation.
1636.3(j)(5) Undue Hardship--Cannot Be Demonstrated by Assumption or
Speculation
Lastly, the proposed rule provides that a covered entity cannot
demonstrate that a reasonable accommodation imposes an undue hardship
based on an assumption or speculation that other employees might seek a
reasonable accommodation--even the same reasonable accommodation--or
the same employee might seek another reasonable accommodation in the
future.\120\ Relatedly, a covered entity that receives numerous
requests for the same or similar accommodation at the same time (for
example, parking spaces closer to the factory) cannot deny all of them
simply because processing the volume of current or anticipated requests
is, or would be, burdensome or because it cannot grant all of them as
requested. Rather, the covered entity must evaluate and provide
reasonable accommodations unless or until doing so imposes an undue
hardship. The covered entity may point to past and cumulative costs or
burden of accommodations that have already been granted to other
employees when claiming the hardship posed by another request for the
same or similar accommodation.
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\120\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, at n.113.
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1636.3(k) Interactive Process
General Definition and Additions
The PWFA at 42 U.S.C. 2000gg(7) refers to the definitions from the
ADA that apply to the PWFA and states that this includes the
``interactive process,'' a term from the ADA, and how it ``will
typically be used to determine an appropriate reasonable
accommodation.'' The proposed rule largely adopts the explanation of
the interactive process in the regulations implementing the ADA so that
the interactive process under the PWFA generally mirrors the same
process under the ADA.\121\ The proposed rule also notes that there are
no rigid steps that must be followed when engaging in the interactive
process under the PWFA. The proposed regulation makes the following
adjustments to the definition of interactive process from the ADA in
order to apply it to the PWFA.
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\121\ 29 CFR 1630.2(o)(3).
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First, the definition replaces references to ``individual with
disability'' and similar terms with ``employee with known limitations''
and similar terms.
Second, the proposed rule does not include the words ``precise
limitations resulting from the disability'' from the ADA's explanation
of ``interactive process.'' As a result, the second sentence is: ``This
process should identify the known limitations and potential reasonable
accommodations that could overcome those limitations.'' Under the ADA,
the interactive process may begin with the individual identifying the
``precise limitations'' of the disability as well as identifying
potential reasonable accommodations that could overcome those
limitations.\122\ It is not necessary under the PWFA that the ``precise
limitation'' be identified because the statute makes clear that an
individual is entitled to an accommodation if the ``limitation'' is
known.
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\122\ Id.
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Step-by-Step Process
The Appendix to the ADA Regulations provides an example of the
steps in a reasonable accommodation process and, for ease of reference,
the Commission includes it below with minor changes reflecting the
PWFA's requirement to provide reasonable accommodations for known
limitations.\123\ A covered entity may use these steps and its
established ADA-related processes to address requests for reasonable
accommodations for workers under PWFA. As with the ADA, a covered
entity should respond expeditiously to a request for reasonable
accommodation and act promptly to provide the reasonable
accommodation.\124\
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\123\ 29 CFR part 1630 app. 1630.9.
\124\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, at Question 10. Following the steps laid out for the
interactive process is not a defense to liability if the employer
fails to provide a reasonable accommodation that it could have
provided absent undue hardship.
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When an employee with a known limitation has requested a reasonable
accommodation regarding the performance of the job, the covered entity,
using a problem-solving approach, should:
a. Analyze the particular job involved and determine its purpose
and essential functions;
b. Consult with the employee with a known limitation to ascertain
what kind of accommodation is necessary given the known limitation;
c. In consultation with the employee with the known limitation,
identify potential accommodations and assess the effectiveness each
would have in enabling the employee to perform the essential functions
of the position. If the employee's limitation means that they are
temporarily unable to perform one or more essential functions of the
position, the parties must also consider whether suspending the
performance of one or more essential functions may be a part of the
reasonable accommodation if the known limitation is temporary in nature
and the employee could perform the essential function(s) in the near
future (within generally forty weeks); and
d. Consider the preference of the employee to be accommodated and
select and implement the accommodation that is most appropriate for
both the employee and the covered entity.\125\
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\125\ See 29 CFR part 1630 app. 1630.9.
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Steps (b)-(d) outlined above can be adapted and applied to requests
for reasonable accommodations related to the application process and to
benefits and privileges of employment. In those situations, in step
(c), the consideration should be how to enable the applicant with a
known limitation to be considered for the position in question or how
to provide an employee with a known limitation with the ability to
[[Page 54736]]
enjoy equal benefits and privileges of employment.
In many instances, the appropriate reasonable accommodation may be
obvious to either or both the employer and the employee with the known
limitation, such that it may not be necessary to proceed in this step-
by-step fashion. Although covered entities are cautioned that under 42
U.S.C. 2000gg-1(2) and proposed Sec. 1636.4(b) they cannot
unilaterally require a worker with a limitation to accept a specific
accommodation, the step-by-step approach may not be necessary when, for
example, a pregnant worker requests certain modifications such as
allowing the employee to drink water regularly during the workday,
additional restroom breaks, modifications in policies regarding sitting
or standing, or modifications in polices regarding eating or drinking.
These requested modifications will virtually always be found to be
reasonable accommodations that do not impose an undue hardship and are
therefore unlikely to require significant discussion in the interactive
process, and there may be other accommodations that are equally easy to
provide. However, in some instances, neither the employee or applicant
requesting the
[…truncated; see source link]Indexed from Federal Register on August 11, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.