Regulations To Implement the Pregnant Workers Fairness Act
| Published date | 11 August 2023 |
| Record Number | 2023-17041 |
| Citation | 88 FR 54714 |
| Court | Equal Employment Opportunity Commission |
| Section | Proposed rules |
Federal Register, Volume 88 Issue 154 (Friday, August 11, 2023)
[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 [www.gpo.gov]
[FR Doc No: 2023-17041]
[[Page 54713]]
Vol. 88
Friday,
No. 154
August 11, 2023
Part IIEqual Employment Opportunity Commission-----------------------------------------------------------------------29 CFR Part 1636Regulations 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:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
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).
Mail: Raymond Windmiller, Executive Officer, Executive
Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street
NE, Washington, DC 20507.
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 https://www.regulations.gov, 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 https://www.regulations.gov 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, [email protected]; 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), https://clerk.house.gov/Votes/2021143 (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,
https://www.dol.gov/agencies/wb/pregnant-nursing-employment-protections (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), https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues [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), https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018SurveyResults_ExecutiveSummary_Aug2020.pdf [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), https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada
[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), https://www.census.gov/library/visualizations/time-series/demo/fertility-time-series.html [hereinafter Births in the Past Year and Labor
Force Participation]; see also Steven Ruggles et al., IPUMS USA:
Version 12.0 (2022), https://doi.org/10.18128/D010.V12.0
[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 [email protected].
\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), https://www2.census.gov/library/publications/2011/demo/p70-128.pdf [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), https://www.youtube.com/watch?v=p6Ie2S9sTxs [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), https://www.whitehouse.gov/wp-content/uploads/2022/06/Maternal-Health-Blueprint.pdf.
\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), https://www.nber.org/system/files/working_papers/w30693/w30693.pdf (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), https://www.cdc.gov/ncbddd/stillbirth/features/kf-black-mothers-stillbirth.html.
\32\ See U.S. Dep't of Lab., Black Mothers at Work: A Discussion
on Workplace Challenges and Supports, (Apr. 11, 2023), https://usdolevents.webex.com/recordingservice/sites/usdolevents/recording/654d1e18bab8103bbdff00505681d077/playback (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), https://askjan.org/topics/costs.cfm
[hereinafter Costs and Benefits of Accommodation].
\34\ Eugene R. Declercq et al., Listening to Mothers III: New
Mothers Speak Out 36 (2013), https://www.nationalpartnership.org/our-work/resources/health-care/maternity/listening-to-mothers-iii-new-mothers-speak-out-2013.pdf [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), http://www.eeoc.gov/policy/docs/threshold.html#2-III-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), http://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada [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) https://www.womenshealth.gov/a-z-topics/prenatal-care;
Am. Coll. of Obstetricians & Gynecologists, Comm. Opinion No. 736,
Optimizing Post-Partum Care (stating the importance of regular post-
partum care) (2021) (https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-postpartum-care) & Opinion No. 826, Protecting and Expanding Medicaid to
Improve Women's Health (encouraging the expansion of Medicaid to
improve post-partum care) (2021) (https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2021/06/protecting-and-expanding-medicaid-to-improve-womens-health).
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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),
https://www.eeoc.gov/commission-decision-coverage-contraception
(``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), https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act [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\
---------------------------------------------------------------------------
\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\
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\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, Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/temporary (``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), https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html.
\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) https://www.medicaid.gov/medicaid/quality-of-care/downloads/image-maternity-care-expansion.png.
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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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\83\ 29 CFR 1630.2(o).
---------------------------------------------------------------------------
First, the proposed rule replaces references to ``individual with a
disability'' and similar terms with ``employee with a known
limitation'' and similar terms.\84\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\97\ 29 CFR part 1630 app. 1630.9.
---------------------------------------------------------------------------
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), http://www.eeoc.gov/laws/guidance/final-report-best-practices-employment-people-disabilities-state-government [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.
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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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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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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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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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.
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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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), https://www.dol.gov/agencies/whd/pump-at-work.2023), https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers. 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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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.
---------------------------------------------------------------------------
\110\ 29 CFR 1630.2 (o)(2)(ii).
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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.
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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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 accommodation, nor the covered entity, may be able to
readily identify an appropriate accommodation. For example, an
applicant needing an accommodation may not know enough about the
equipment used by the covered entity or the exact nature of the work
site to suggest an appropriate accommodation. Likewise, the covered
entity may not know enough about the employee's known limitation and
its effect on the performance of the job to suggest an appropriate
accommodation. In these situations, the steps above may be helpful. In
addition, parties may consult outside resources such as State or local
entities, non-profit organizations, or the Job Accommodation Network
(JAN) for ideas regarding potential reasonable accommodations.\126\
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\126\ The Job Accommodation Network (JAN) provides free
assistance regarding workplace accommodation issues. See generally
Job Accommodation Network, https://askjan.org/ (last visited July
28, 2023).
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Failure To Engage in Interactive Process
Failing to engage in the interactive process, in and of itself, is
not a violation of the PWFA just as it is not a violation of the ADA.
However, a covered entity's failure to initiate or participate in the
interactive process with the employee or applicant after receiving a
request for reasonable accommodation could result in liability if the
employee or applicant does not receive a reasonable accommodation even
though one is available that would not have posed an undue
hardship.\127\ Relatedly, an employee's unilateral withdrawal from or
refusal to participate in the interactive process can constitute
sufficient grounds for denying the reasonable accommodation.
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\127\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, at Question 10.
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1636.3(l) Supporting Documentation
In determining when and what types of documentation a covered
entity may request of an employee or applicant to support their request
for a reasonable accommodation, the Commission is guided by existing
rules under the ADA, differences between the relevant statutory
provisions of the ADA and the PWFA, and the recognition that
accommodations under the PWFA may be small, temporary modifications
that may not always lend themselves to medical documentation.
First, and most importantly, a covered entity is not required to
seek supporting documentation from a worker who seeks an accommodation
under the PWFA. For example, under the ADA, an employer may simply
discuss with the employee or applicant the nature of the limitation and
the need for an accommodation; \128\ the same is true under the PWFA,
and this approach is entirely consistent with the PWFA's emphasis on
the importance of the interactive process as described in Sec.
1636.3(k).
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\128\ Id. at Question 6.
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Additionally, the Commission notes that pregnant workers may
experience limitations and, therefore, require accommodations, before
they have had any medical appointments. For example, some workers may
experience morning sickness and nausea early in their pregnancies and
need accommodations such as later start times, breaks, or telework.
The Commission further recognizes that it may be difficult for a
pregnant employee to obtain an immediate appointment with a health care
provider early in a pregnancy. For example, according to one study,
almost a quarter of women did not receive prenatal care during their
first trimester, and 12% of births take place in counties with limited
or no access to maternity care.\129\ Further, even for those who have
access to medical care, known limitations may develop between scheduled
medical appointments, such that requiring documentation in those
situations would increase the cost to the worker and may require them
to take additional leave in order to obtain the documentation.
Therefore, consistent with the purposes of the PWFA, the Commission
encourages employers who choose to require documentation, when that is
permitted under this regulation, to grant interim accommodations as a
best practice if an employee indicates that they have tried to obtain
documentation but there is a delay in obtaining it, and the
documentation will be provided at a later date. For example, if a
pregnant employee requests an accommodation for a pregnancy-related
limitation in lifting, which may involve the temporary suspension of an
essential function, but the employee will not be able to provide a note
from a health care practitioner for several weeks, the employer should
consider providing an interim reasonable accommodation.\130\
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\129\ Medical care often is not available or immediately
obtained early in a pregnancy. See, e.g., Joyce A. Martin et al.,
Ctrs. for Disease Control, Births in the United States, 2019 2
(2020), https://www.cdc.gov/nchs/data/databriefs/db387-H.pdf
(indicating that in 2019, almost 23% of women who gave birth did not
receive prenatal care during the first trimester); Christina
Brigance et al., March of Dimes, Nowhere to Go: Maternity Care
Deserts Across the U.S. 4 (2022), https://www.marchofdimes.org/research/maternity-care-deserts-report.aspx (reporting that
approximately 12 percent of births in the United States occur in
counties with limited or no access to maternity care); American
Pregnancy Association, Your First Prenatal Visit, https://americanpregnancy.org/healthy-pregnancy/planning/first-prenatal-visit/ (last visited Apr. 3, 2023) (stating that the first prenatal
visit for individuals who did not meet with their health care
provider pre-pregnancy is generally around 8 weeks after their last
menstrual period); University of Utah Health, Pregnancy--First
Trimester, Weeks 1-13, https://healthcare.utah.edu/womenshealth/pregnancy-birth/1st-trimester (last visited Apr. 3, 2023) (stating
that doctors recommend scheduling the first obstetric appointment
between the 8th and 10th week of pregnancy); Boston Medical Center,
Newly Pregnant?, https://www.bmc.org/newly-pregnant (last visited
Apr. 3, 2023) (stating that the first prenatal appointment will be
scheduled between the 8th and 12th weeks of pregnancy).
\130\ See Best Practices State Government, supra note 100. See
also above discussion on Interim Reasonable Accommodations.
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If a covered entity decides to require supporting documentation, it
is only permitted to do so under the proposed rule if it is reasonable
to require documentation under the circumstances for the covered entity
to determine whether to grant the accommodation. When requiring
documentation is reasonable, the employer is also limited to requiring
documentation that itself is reasonable. The preamble, rule, and
appendix set out examples of when it would not be reasonable for the
employer to require documentation. The proposed rule also defines
``reasonable documentation'' as documentation that describes or
confirms (1) the physical or
[[Page 54737]]
mental condition; (2) that it is related to, affected by, or arising
out of pregnancy, childbirth, or related medical conditions; and (3)
that a change or adjustment at work is needed for that reason.
As explained below, and set forth at Sec. 1636.4(a)(3), an
employer may not defend the denial of an accommodation under 42 U.S.C.
2000gg-1(1) based on the lack of documentation if its request for
documentation does not comport with the proposed rule. In these
situations, the worker will have met the requirements of Sec.
1636.3(d)(3), and the employer will have sufficient information
regarding the known limitation and the need for accommodation. Further,
requests for documentation that violate the proposed rule may be a
violation of the prohibition on retaliation and coercion in 42 U.S.C.
2000gg-2(f), as set forth in proposed Sec. Sec. 1636.5(f)(1)(iv), (v)
and (f)(2)(iv), (v) because they may deter workers from seeking
accommodations.
1636.3(l)(1) Reasonable To Require Documentation Under the
Circumstances
Under the proposed rule, a covered entity may require documentation
only if it is reasonable to do so under the circumstances for the
covered entity to decide whether to grant the accommodation. The
regulation provides several examples of when it would not be reasonable
for the employer to require documentation.
First, it is not reasonable for the employer to require
documentation when both the limitation and the need for reasonable
accommodation are obvious.\131\ For example, when an obviously pregnant
\132\ worker states or confirms they are pregnant and asks for a
different size uniform or related safety gear, both the limitation and
the need for the accommodation are obvious, and ``known'' under the
statute, and the employer may not require supporting documentation. If
the pregnancy is obvious, and the worker states or confirms that they
are pregnant, but the limitation related to the pregnancy or parameters
of a potential accommodation are not, the employer may only request
documentation relevant to the accommodation. For example, if a worker
who is obviously pregnant, states or confirms that they are pregnant,
and asks to avoid lifting heavy objects, it may be reasonable for the
employer to request documentation about the limitation such as the
extent of the lifting restriction and its expected duration, but not
about the pregnancy itself. Similarly, if an obviously pregnant
employee requests the reasonable accommodation of leave related to
childbirth and recovery and states or confirms that they are pregnant
it may be reasonable for the employer to require documentation
regarding the amount of time the worker anticipates needing to recover
from childbirth, but not reasonable to require documentation of the
pregnancy itself.
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\131\ This is similar to the ADA under which requesting
documentation when the disability and the need for the accommodation
are obvious or otherwise already known would violate the prohibition
on disability-related inquires without a business justification.
Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees Under the ADA, Question 5 (2000), http://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees [hereinafter
Enforcement Guidance on Disability-Related Inquires].
\132\ Early or initial physical indications of pregnancy may not
be sufficient to make it obvious to an employer that an employee is
pregnant.
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Second, when the employee or applicant has already provided the
employer with sufficient information to substantiate that the worker
has a known limitation and needs a change or adjustment at work, it is
not reasonable for the employer to require documentation. If a worker
has already provided documentation stating that because of their recent
cesarean section, they should not lift over 20 pounds for two months,
the employer may not require further documentation during those two
months because the employee has already provided the employer with
sufficient information to substantiate that they have a limitation and
need a change at work.
A third example of when it is not reasonable for an employer to
require documentation is when a worker at any time during their
pregnancy states or confirms that they are pregnant and seeks one of
the following accommodations: (1) carrying water and drinking, as
needed; (2) taking additional restroom breaks; (3) sitting, for those
whose work requires standing, and standing, for those whose work
requires sitting; and (4) breaks, as needed, to eat and drink. It is
not reasonable to require documentation, beyond self-attestation, when
a worker is pregnant and seeks one of the four listed modifications
because these are a small set of commonly sought accommodations that
are widely known to be needed during an uncomplicated pregnancy and
where documentation would not be easily obtainable or necessary. As
noted above, particularly early in pregnancy, employees and applicants
are less likely to have sought or been able to obtain an appointment
with a health care provider for their pregnancy. Further, they may not
be able to obtain an appointment with a health care provider repeatedly
on short notice for every limitation, as each becomes apparent. The
Commission notes that this position is consistent with the overarching
goal of the PWFA to assist workers affected by pregnancy to remain on
the job by providing them with simple accommodations quickly.
A fourth example of when it is not reasonable to require
documentation is when the limitation for which an accommodation is
needed involves lactation. Usually, beginning around or shortly after
birth, lactation occurs. As the initiation of lactation around birth is
nearly universal, the Commission considers the fact of breastfeeding
obvious, such that it will not be reasonable for an employer to require
documentation regarding lactation or pumping. Pragmatically, the
Commission notes that health care providers may not be able to provide
documentation regarding whether a worker is pumping, nor the types of
accommodations needed in order to pump breast milk.\133\ Of course, not
all workers can or choose to breastfeed; those who do elect to
breastfeed do so for widely varying lengths of time. Although the
proposed rule states that it is generally not reasonable for an
employer to require supporting documentation for lactation or pumping,
an employer will not violate the proposed rule simply by asking the
employee whether they require an appropriate place to express
breastmilk while at a worksite. Employee confirmation--or a simple
request to pump at work--is sufficient confirmation.
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\133\ See supra note 109, for discussion of the PUMP Act and the
types of accommodations that may be requested with regard to
pumping.
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If the request for supporting documentation was not reasonable
under the circumstances for the covered entity to determine whether to
grant the accommodation, a covered entity cannot defend the denial of
an accommodation based on the lack of documentation provided by the
worker, as set forth in proposed Sec. 1636.4(a)(3). Further, proposed
Sec. 1636.5(f) states that it could violate the retaliation and
coercion provisions of the PWFA if a covered entity requires the
submission of supporting documentation that is not reasonable under the
circumstances to determine whether to grant the accommodation because,
for example, (1) both the limitation and the need for reasonable
accommodation are obvious; (2) the employee or applicant already has
provided the employer with sufficient information to substantiate
[[Page 54738]]
that the individual has a known limitation and needs a change or
adjustment at work; (3) a pregnant worker is seeking one of the
modifications listed at 1636.3(j)(4); or (4) the accommodation
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requested involves lactation.
Example 1636.3 #36/Documentation: An employer adopts a policy
requiring everyone who requests a reasonable accommodation to
provide medical documentation in support of the request. Cora, a
production worker who is 8 months pregnant, requests additional
bathroom breaks, and the employer applies the policy to her,
refusing to provide the accommodation until she submits medical
documentation. Cora therefore makes a medical appointment that she
does not need and brings in documentation to establish that she is
pregnant and has a physical condition that requires additional
bathroom breaks. The employer grants the requested accommodation
shortly before Cora gives birth. Despite the fact that the
accommodation was granted, this employer may have violated the PWFA,
42 U.S.C. 2000gg-1(a) and/or 2000gg-2(f).
Example 1636.3 #37/Documentation: An employer adopts a policy
requiring everyone who requests a reasonable accommodation to
provide medical documentation in support of the request. Fourteen
months after giving birth, Alex wants to continue to pump breastmilk
at work, explains that to her supervisor, and asks, as a reasonable
accommodation, for breaks to pump and that the room that is provided
have a chair, a table, and access to electricity and running water.
Alex's employer refuses to provide the accommodations unless Alex
provides supporting documentation from her health care provider.
Alex cannot provide the information, so she stops pumping. The
employer cannot use the lack of documentation as a defense to the
denial of the accommodation because documentation was not reasonable
under the circumstances for the employer to determine whether to
grant to accommodation, as set forth in proposed Sec. 1636.4(a)(3).
1636.3(l)(2) Reasonable Documentation
When it is reasonable to require documentation under the
circumstances for the covered entity to determine whether to grant the
accommodation, the covered entity is permitted to require reasonable
documentation, including from a health care provider. The proposed rule
defines ``reasonable documentation'' as documentation that describes or
confirms: (1) the physical or mental condition; (2) that it is related
to, affected by, or arising out of pregnancy, childbirth, or related
medical conditions; and (3) that a change or adjustment at work is
needed for that reason. For example, if an employee asks for leave as a
reasonable accommodation to attend therapy appointments due to anxiety
early in the employee's pregnancy, the employer could, but is not
required to, ask for documentation confirming that there is a physical
or mental condition that is related to, affected by, or arising out of
pregnancy, and information about how frequent and long the leave would
need to be.
Adopting the longstanding approach under the ADA, proposed Sec.
1636.4(f)(1)(v) and (f)(2)(v) explain that if an employee or applicant
provides documentation that is sufficient, continued efforts by the
covered entity to require that the individual provide more
documentation could be a violation of the PWFA's prohibitions on
retaliation and coercion. However, if a covered entity requests
additional information based on a good faith belief that the
documentation the employee submitted is insufficient, it would not be
liable for retaliation or coercion.\134\
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\134\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, at n.33; Enforcement Guidance on Disability-Related
Inquiries, supra note 114, at Question 11.
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The Commission seeks comment regarding this proposed approach to
documentation, including: (1) whether this approach strikes the correct
balance between what an employee or applicant can provide and the
interests of the covered entity; (2) whether it is always reasonable
under the circumstances for covered entities to require confirmation of
pregnancy beyond self-attestation when the pregnancy is not obvious;
(3) if allowed, whether the confirmation of a non-obvious pregnancy
should be limited to less invasive methods such as the confirmation of
a pregnancy through a urine test; (4) the ability of employees or
applicants to obtain relevant information from a health care provider,
particularly early in pregnancy; and (5) whether there are other common
limitations that occur early in pregnancy, such as fatigue or morning
sickness, for which an employer should not be permitted to require
documentation beyond self-attestation.
1636.3(l)(3) Appropriate Health Care Provider To Provide Documentation
If the covered entity meets the requirements laid out above to
request documentation and does so, the covered entity may request
documentation from an appropriate health care provider in the
particular situation. An appropriate provider may vary depending on the
situation; the proposed regulation contains a non-exhaustive list of
possible health care providers that is based on the non-exhaustive list
for the ADA.\135\ The Commission seeks comment on whether other types
of health care providers should be included on this list.
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\135\ See Enforcement Guidance on Reasonable Accommodation,
supra note 44, at Question 6.
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The Commission does not believe that it will be practical or
necessary for a covered entity to request or require that an employee
be examined by a health care provider of the covered entity's choosing
based on the PWFA's lower threshold for requiring reasonable
accommodations, the temporary duration of PWFA accommodations, and the
minimal nature of at least some of the most common reasonable
accommodations associated with general limitations of pregnancy,
childbirth, or related medical conditions.
The Commission seeks comment about whether there are situations in
which an employer should be permitted to require such an examination,
what limits should be placed on such a process, and what effect
allowing such an examination may have on the willingness of workers to
request accommodations under the PWFA.
1636.3(l)(4) Confidentiality
The PWFA does not include a provision specifically requiring
covered entities to maintain the confidentiality of medical information
obtained in support of accommodation requests under the PWFA. However,
applicants, employees, and former employees covered by the PWFA also
are covered by the ADA.\136\ Under the ADA, covered entities are
required to keep medical documentation of applicants, employees, and
former employees confidential, with limited exceptions.\137\ These ADA
rules on keeping medical information confidential apply to all medical
information, including medical information voluntarily provided as part
of the reasonable accommodation process, and, therefore, include
medical information obtained under the PWFA. Moreover, as explained in
Sec. 1636.5(f), an employer's intentional disclosure of medical
information obtained through PWFA's reasonable accommodation process
may violate the PWFA's prohibition on retaliation and/or coercion.
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\136\ See 42 U.S.C. 12111(5)(a) & 4 (ADA); 42 U.S.C.
2000gg(1)(B)(i) & (3)(A).
\137\ 29 CFR 1630.14(b) & (c); Enforcement Guidance on
Disability-Related Inquiries, supra note 114, at text accompanying
nn.9-10; EEOC, Enforcement Guidance: Preemployment Disability-
Related Questions and Medical Examinations, at text accompanying n.6
(1995), https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical.
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Section 1636.4 Prohibited Practices
42 U.S.C. 2000gg-1 sets out five possible violations involving the
[[Page 54739]]
provision of reasonable accommodations.
1636.4(a) Failing To Provide Reasonable Accommodation
42 U.S.C. 2000gg-1(1) prohibits a covered entity from failing to
make a reasonable accommodation for a qualified employee or applicant
with a known limitation unless the covered entity can demonstrate that
the accommodation would impose an undue hardship on the operation of
its business. This provision of the PWFA uses the same language as the
ADA, and the proposed rule likewise uses the language from the
corresponding ADA regulation, replacing references to ``individual with
a disability'' and similar terms with ``employee with a known
limitation'' and similar terms.\138\ Because 42 U.S.C. 2000gg-1(1) uses
the same operative language as the ADA, the Commission proposes
interpreting it in a similar manner.
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\138\ 42 U.S.C. 12112(b)(5)(A); 29 CFR 1630.9(a).
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This section is violated when a covered entity denies a reasonable
accommodation to a qualified employee or applicant with a known
limitation, absent undue hardship. As under the ADA, however, a covered
entity does not violate 42 U.S.C. 2000gg-1(1) merely by refusing to
engage in the interactive process; for a violation, there also must
have been a reasonable accommodation that the employer could have
provided absent undue hardship.
1636.4(a)(1) Unnecessary Delay in Responding to a Request for a
Reasonable Accommodation
Given that pregnancy-related limitations are frequently temporary,
a delay in providing an accommodation may mean that the period
necessitating the accommodation could pass without action simply
because of the delay.\139\ Proposed Sec. 1636.4(a)(1) addresses this
issue. As with the ADA, an unnecessary delay in responding to a request
for a reasonable accommodation may result in a violation of the PWFA if
the delay results in a failure to provide a reasonable
accommodation.\140\ This can be true even if the reasonable
accommodation is eventually provided, when the delay was unnecessary.
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\139\ See, e.g., Long Over Due, supra note 2, at 96 (statement
of Rep. Suzanne Bonamici) (praising the PWFA because it would allow
pregnant workers to get accommodations without waiting months or
years; 168 Cong. Rec. S10,081 (daily ed. Dec. 22, 2022) (statement
of Sen. Robert Casey, Jr.) (noting that ``pregnant workers need
immediate relief to remain healthy and on the job'').
\140\ Enforcement Guidance on Reasonable Accommodation, supra
note 44, at Question 10, n.38.
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The factors set out in Sec. 1636.4(a)(1) include the same factors
that are used when determining if a delay in the provision of a
reasonable accommodation violates the ADA.\141\ This proposed
regulation adds to these established factors two new factors. First, in
determining whether a delay in providing a reasonable accommodation was
unnecessary, the question of whether providing the accommodation was
simple or complex is a factor to be considered. There are certain
modifications, set forth in Sec. 1636.3(j)(4), that will virtually
always be found to be reasonable accommodations that do not impose an
undue hardship: (1) allowing a pregnant employee to carry and drink
water, as needed; (2) allowing a pregnant employee additional restroom
breaks; (3) allowing a pregnant employee whose work requires standing
to sit and whose work requires sitting to stand; and (4) allowing a
pregnant employee breaks to eat and drink, as needed. If there is a
delay in providing these accommodations, it will virtually always be
found to be unnecessary because of the presumption that these
modifications will be reasonable accommodations that do not impose an
undue hardship. Second, another factor to be considered when
determining if a delay in providing a reasonable accommodation was
unnecessary is whether the covered entity offered the employee or
applicant an interim reasonable accommodation during the interactive
process or while waiting for the covered entity's response. The
provision of such an interim accommodation will decrease the likelihood
that an unnecessary delay will be found. Under this factor, leave is
not considered an appropriate interim reasonable accommodation if there
is another interim reasonable accommodation that would not cause an
undue hardship and would allow the employee to continue working, unless
the employee selects or requests leave as an interim reasonable
accommodation.\142\
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\141\ Id.
\142\ The restriction on using leave as an interim accommodation
is based on 42 U.S.C. 2000gg-1(4).
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1636.4(a)(2) Employee or Applicant Declining a Reasonable Accommodation
The proposed rule provides, as in the ADA, that if an employee
declines a reasonable accommodation, and without it the employee cannot
perform one or more essential functions of the position, then the
employee will no longer be considered qualified.\143\ However, because
the PWFA allows for the temporary suspension of one or more essential
functions in certain circumstances, an employer must also consider
whether one or more essential functions can be temporarily suspended
pursuant to the PWFA before a determination is made pursuant to this
section that the employee is not qualified.
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\143\ See 29 CFR 1630.9(d).
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1636.4(a)(3) Covered Entity Denying a Reasonable Accommodation Due to
Lack of Supporting Documentation
As set out in the section of this preamble regarding supporting
documentation, if the request for documentation was not reasonable
under the circumstances for the covered entity to determine whether to
grant the accommodation, a covered entity cannot defend the denial of
an accommodation based on the lack of documentation provided by the
worker. The proposed rule contains this provision in Sec.
1636.4(a)(3).
1636.4(a)(4) Choosing Among Possible Accommodations
Similar to the ADA, if there is more than one effective
accommodation, the employee's or applicant's preference should be given
primary consideration. However, the employer providing the
accommodation has the ultimate discretion to choose between potential
reasonable accommodations and may choose, for example, the less
expensive accommodation or the accommodation that is easier for it to
provide, or generally the accommodation that imposes the least
hardship.\144\ In the situation where the employer is choosing between
reasonable accommodations and does not provide the accommodation that
is the worker's preferred accommodation, the employer does not have to
show that it is an undue hardship to provide the worker's preferred
accommodation.
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\144\ 29 CFR part 1630 app. 1630.9.
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A covered entity's ``ultimate discretion'' to choose a reasonable
accommodation is limited by certain other considerations. First, the
accommodation must provide the individual with a known limitation with
an equal employment opportunity, meaning 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 known limitation.\145\ Thus, if
[[Page 54740]]
there is more than one accommodation that does not impose an undue
hardship, but one of them does not provide the employee with an equal
employment opportunity, the employer must choose the one that provides
the worker with equal employment opportunity.\146\ Depending on the
facts, selecting the accommodation that does not provide equal
opportunity could violate 42 U.S.C. 2000gg-1(1), 2000gg-(1)(5) or
2000gg-2(f).\147\ The proposed rule, Sec. 1636.4(a)(4), sets out this
prohibition.
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\145\ 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.''); 29 CFR part 1630 app. 1630.2(o) (explaining that
reassignment should be to a position with equivalent pay, status,
etc., if possible); see also Enforcement Guidance on Reasonable
Accommodation, supra note 44, at text following n.80 (``However, if
both the employer and the employee voluntarily agree that transfer
is preferable to remaining in the current position with some form of
reasonable accommodation, then the employer may transfer the
employee.''); Cf. EEOC, Compliance Manual on Religious
Discrimination, 12-IV.3 (2021) (stating that in the context of a
religious accommodation, an accommodation would not be reasonable
``if it requires the employee to accept a reduction in pay rate or
some other loss of a benefit or privilege of employment and there is
an alternative accommodation that does not do so.'') https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination
[hereinafter Religious Discrimination Compliance Manual].
\146\ Enforcement Guidance on Reasonable Accommodations, supra
note 44, Question 9 Example B.
\147\ Depending on the facts, this could be a violation of Title
VII's prohibition on sex discrimination as well.
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The Commission seeks comment on whether it should include language
in the rule explaining that an employer may not unreasonably select an
accommodation that negatively affects an employee's or applicant's
employment opportunities or terms and conditions of employment when
another available accommodation would not do so or whether the
protections in 42 U.S.C. 2000gg-1(1) and (5) and 2000gg-2(f) alone are
sufficiently clear in this regard.\148\
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\148\ Cf. 29 CFR 1605.2(c)(2)(ii) (when more than one means of
accommodation would not cause undue hardship, the employer or labor
organization must offer the accommodation that least disadvantages
the individual with respect to employment opportunities).
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Second, 42 U.S.C. 2000gg-1(2) prohibits a covered entity from
requiring a qualified employee or applicant affected by pregnancy,
childbirth, or related medical conditions to accept an accommodation
other than a reasonable accommodation arrived at through the
interactive process. Third, 42 U.S.C. 2000gg-1(4) prohibits a covered
entity from requiring a qualified employee with a known limitation to
take leave if there is a reasonable accommodation that will allow the
employee to continue to work, absent undue hardship. Fourth, 42 U.S.C.
2000gg-1(5) prohibits a covered entity that is, for example, selecting
from an array of accommodations, all of which are effective and do not
impose an undue hardship, from picking one that results in the covered
entity taking adverse action in terms, conditions, or privileges of
employment of the employee or applicant. Fifth, 42 U.S.C. 2000gg-2(f)
prohibits retaliation and coercion by covered entities. These
limitations to the ``ultimate discretion'' of a covered entity to
choose between reasonable accommodations are described in the
discussions of Sec. 1636.4(b), (d), and (e) and Sec. 1636.5(f) below.
Example 1636.4 #38/Failing to Provide an Accommodation: Yasmin's
job requires her to travel to meet with clients. Because of her
pregnancy, she is not able to travel for three months. She asks that
she be allowed to conduct her client meetings via video
conferencing. Although this accommodation would allow her to perform
her essential job functions and does not impose an undue hardship,
her employer reassigns her to smaller, local accounts. Being
assigned only to these accounts limits Yasmin's ability to compete
for promotions and bonuses as she had in the past.
This could be a violation of 42 U.S.C. 2000gg-1(1), because
Yasmin is denied an equal opportunity to compete for promotions and
is thus denied a reasonable accommodation. The employer's actions
could also violate 42 U.S.C. 2000gg-1(5) and 42 U.S.C. 2000gg-2(f),
or Title VII's prohibition against pregnancy discrimination.
1636.4(b) Requiring Employee or Applicant To Accept an Accommodation
42 U.S.C. 2000gg-1(2) prohibits a covered entity from requiring an
employee or applicant to accept an accommodation other than any
reasonable accommodation arrived at through the interactive process.
This provision responds to concerns that some employers may
unilaterally curtail what a pregnant worker can do in the mistaken
belief that the worker needs some type of help.\149\ Pursuant to this
provision in the PWFA and the proposed rule, a covered entity cannot
force an employee or applicant to accept an accommodation such as light
duty or a temporary transfer, or delay of an examination that is part
of the application process, without engaging in the interactive
process, even if the covered entity's motivation is concern for the
applicant's or employee's health or pregnancy.
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\149\ Cf. EEOC, Enforcement Guidance: Unlawful Disparate
Treatment of Workers with Caregiving Responsibilities II.A.3 (2007),
https://www.eeoc.gov/laws/guidance/enforcement-guidance-unlawful-disparate-treatment-workers-caregiving-responsibilities (describing
situations in which employers incorrectly assume based on
stereotypes that workers with caregiving responsibilities need a
change to their workload or work environment); see also UAW v.
Johnson Controls, 499 U.S. 187 (1991) (striking down employer's
fetal protection policy that limited the opportunities of women);
Long Over Due, supra note 2, at 192 (written answers of Dina Bakst,
Co-Founder & Co-President, A Better Balance) (explaining that
employers have been known to unilaterally cut a worker's hours or
stop a worker from working late in an attempt to ``help'' the
employee or because the employer felt sorry for the worker, even
though an employee did not ask for such accommodation and did not
need it).
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42 U.S.C. 2000gg-1(2) does not require that the employee or
applicant have a limitation, known or not; thus, a violation of 42
U.S.C. 2000gg-1(2) could occur if a covered entity notices that an
employee or applicant is pregnant and decides, without engaging in the
interactive process with the employee or applicant, that the employee
or applicant needs a particular accommodation, and unilaterally
requires the employee or applicant to accept that accommodation, even
though the employee or applicant has not requested it and can perform
the essential functions of the job without it. For example, this
provision could be violated if an employment agency, without discussing
the situation with the candidate, decided that a candidate recovering
from a miscarriage needed an accommodation in the form of not being
sent to certain jobs that the agency viewed as too physical, or if an
employer decided to excuse a pregnant worker from overtime as an
accommodation, without discussing it with them.\150\
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\150\ These actions also could violate Title VII's prohibition
of disparate treatment based on sex. See Enforcement Guidance on
Pregnancy Discrimination, supra note 11, at I.B.1.
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Additionally, a violation could occur if a covered entity receives
a request for a reasonable accommodation and unilaterally imposes an
accommodation that was not requested without engaging in the
interactive process.
Example 1636.4 #39: Kia, a restaurant server, is pregnant. She
asks for additional breaks during her shifts as her pregnancy
progresses because she feels tired, and her feet are swelling. Her
employer, without engaging in the interactive process with Kia,
directs Kia to take host shifts for the remainder of her pregnancy,
because she can sit for long periods during the shift. The employer
has violated 42 U.S.C. 2000gg-1(2) and Sec. 1636.4(b) of the
proposed rule, because it required Kia to accept an accommodation
other than one arrived at through the interactive process, even if
Kia's earnings did not decrease and her terms, conditions, and
[[Page 54741]]
privileges of employment were not harmed. The Commission recognizes
that the relief in this situation may be limited to requiring the
employer to engage in the interactive process with the employee.
By contrast, if the host shift does not provide Kia with equal
terms, conditions, and privileges of employment (e.g., Kia's wages
decrease or Kia no longer can earn tips), the covered entity also
may have violated 42 U.S.C. 2000gg-1(1) (requiring reasonable
accommodation absent undue hardship); 42 U.S.C. 2000gg-1(5)
(prohibiting adverse action in terms, benefits, or privileges of
employment); or 42 U.S.C. 2000gg-2(f) (prohibiting retaliation and
coercion) (implemented in the proposed rule at Sec. 1636.4(a), (e)
and Sec. 1636.5(f)).
Finally, this provision also could be violated if a covered entity
has a rule that requires all pregnant workers to stop a certain
function--such as traveling--automatically, without any evidence that
the particular worker is unable to perform that function. The
Commission seeks comment on whether there are other factual scenarios
that would violate this provision and whether additional examples would
be helpful.
1636.4(c) Denying Opportunities
42 U.S.C. 2000gg-1(3) prohibits a covered entity from denying
employment opportunities to a qualified employee or applicant with a
known limitation if the denial is based on the need of the covered
entity to make reasonable accommodations to the known limitations of
the employee or applicant. Thus, an employee's or applicant's known
limitation and need for a reasonable accommodation cannot be part of
the covered entity's decision regarding hiring, discharge, promotion,
or other employment decisions, unless the reasonable accommodation
would impose an undue hardship on the covered entity. This provision in
the PWFA uses language similar to that of the ADA, and the proposed
rule likewise uses the language similar to the corresponding ADA
regulation.\151\ Additionally, the proposed rule includes situations
where the covered entity's decision is based on the future possibility
that a reasonable accommodation will be needed, i.e., 42 U.S.C. 2000gg-
1(3) prohibits a covered entity from making a decision based on its
belief that an individual may need a reasonable accommodation in the
future even if the individual has not asked for one. Thus, under the
proposed rule, this prohibition would include situations where a
covered entity refuses to hire a pregnant applicant because the covered
entity believes that the applicant will need leave to recover from
childbirth, even if the covered entity does not know the exact amount
of leave the applicant will require, or the applicant has not mentioned
the need for leave as a reasonable accommodation to the covered entity.
The Commission proposes this addition to ensure that workers are
protected in situations where the employer's actions are based on
avoiding the provision of a reasonable accommodation, even if one is
not requested.
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\151\ 42 U.S.C. 12112(b)(5)(B); 29 CFR 1630.9(b).
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1636.4(d) Requiring Employee To Take Leave
Sometimes, when employees notify their employers that they are
pregnant, employers place them on leave or direct them to use
leave.\152\ Workers on unpaid leave risk their economic security, and
workers who use their leave--whether paid or unpaid--prior to giving
birth may not have leave when they need it to recover from
childbirth.\153\
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\152\ H.R. Rep. No. 117-27, pt. 1, at 24.
\153\ Long Over Due, supra note 2, at 81 (statement of Rep.
Jahana Hayes) (explaining that she kept working while pregnant in
order to save her leave for after childbirth).
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42 U.S.C. 2000gg-1(4) seeks to limit this practice. Under this
provision, a covered entity may not require a qualified employee with a
known limitation to take leave, whether paid or unpaid, if another
reasonable accommodation can be provided, absent undue hardship. In
other words, under the PWFA, an employee cannot be forced to take leave
if another reasonable accommodation can be provided that would not
impose an undue hardship and would allow the employee to continue to
work.
Of course, this limitation does not prohibit the provision of leave
as a reasonable accommodation if leave is the reasonable accommodation
requested or selected by the employee, or if it is the only reasonable
accommodation that does not cause an undue hardship. As explained above
in the preamble's discussion of Sec. 1636.3(h) and (i), both paid
leave (accrued, short-term disability, or another employer benefit) and
unpaid leave are potential reasonable accommodations under the PWFA. 42
U.S.C. 2000gg-1-(4) and the proposed rule merely prohibits an employer
from requiring an employee to take leave if there is another reasonable
accommodation that would not impose an undue hardship and would allow
the employee to remain on the job.
1636.4(e) Adverse Action on Account of Requesting or Using a Reasonable
Accommodation
The PWFA contains overlapping provisions that protect workers
seeking or using reasonable accommodations. Importantly, nothing in the
PWFA limits which provision a worker may use to protect their rights.
One of these provisions is 42 U.S.C. 2000gg-1(5), which prohibits a
covered entity from ``tak[ing] adverse action in terms, conditions, or
privileges of employment against a qualified employee on account of the
employee requesting or using a reasonable accommodation to the known
limitations related to pregnancy, childbirth, or related medical
conditions of the employee.'' 42 U.S.C. 2000gg-1(5) only applies to
situations involving a qualified employee who asks for or uses a
reasonable accommodation. The protections provided by 42 U.S.C. 2000gg-
1(5) are likely to have significant overlap with 42 U.S.C. 2000gg-2(f),
which prohibits retaliation. As explained in the preamble's discussion
of 42 U.S.C. 2000gg-2(f) (proposed Sec. 1636.5(f)), however, the
PWFA's anti-retaliation provisions apply to a broader group of
employees and actions than 42 U.S.C. 2000gg-1(5) does.
The term ``take adverse action'' in 42 U.S.C. 2000gg-1(5) is not
taken from Title VII or the ADA. From the context of this provision and
the basic dictionary definitions of the terms, this prohibits an
employer from taking a harmful action against an employee.\154\
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\154\ Adverse, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/adverse (``hostile,'' ``unfavorable'' and
``harmful.'') (last visited June 13, 2023).
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``Terms, conditions, or privileges of employment'' is a term from
Title VII, and the EEOC has interpreted it to encompass a wide range of
activities or practices that occur in the workplace including, but not
limited to, discriminatory work environment or atmosphere; duration of
work (such as the length of an employment contract, hours of work, or
attendance); work rules; job assignments and duties; and job
advancement (such as training, support, and performance
evaluations).\155\ In addition, for the purposes of 42 U.S.C. 2000gg-
1(5), ``terms, conditions, and privileges of
[[Page 54742]]
employment'' can include hiring, discharge, or compensation.\156\
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\155\ 42 U.S.C. 2000e-2(a)(1); Compliance Manual on Terms,
Conditions, and Privileges of Employment, supra note 82, at 613.1(a)
(stating that the language is to be read in the broadest possible
terms and providing a list of examples).
\156\ The PWFA's use of the phrase ``terms, conditions, and
privileges of employment'' includes hiring, discharge, and
compensation, which are also included within the scope of Title VII.
42 U.S.C. 2000e-2(a)(1).
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Thus, this provision may be violated when, for example, a covered
entity grants a reasonable accommodation but then penalizes the
employee.
Example 1636.4 #40: Nava took leave to recover from childbirth
as a reasonable accommodation under the PWFA, and, as a result,
failed to meet the sales quota for that quarter, which led to a
negative performance appraisal. The negative appraisal could be a
violation of 42 U.S.C. 2000gg-1(5) because Nava received it due to
the use of a reasonable accommodation.
Also, an employer may violate this provision if there is more than
one accommodation that does not impose an undue hardship, and the
employer, after the interactive process, chooses the accommodation that
causes an adverse action with respect to the terms, conditions, or
privileges of employment, despite the existence of an alternative
accommodation that would not do so.
Example 1636.4 #41: Ivy asks for additional bathroom breaks
during work because of pregnancy, including during overtime shifts.
After talking to Ivy, rather than providing the breaks during
overtime, Ivy's supervisor decides Ivy should simply not work
overtime, because during the overtime shift there are fewer
employees, and the supervisor does not want to bother figuring out
coverage for Ivy, although it would not be an undue hardship to do
so. As a result, Ivy is not assigned overtime and loses earnings.
This conduct could violate 42 U.S.C. 2000gg-1(5) in two ways.
First, Ivy's request for a reasonable accommodation led to an
adverse action in terms, conditions, or privileges of employment.
Second, Ivy's use of the accommodation of not working overtime led
to a reduction in pay, i.e., an adverse action in terms, conditions,
or privileges of Ivy's employment, and there was an alternative
accommodation (assigning coverage for Ivy as needed) that would not
have done so.
Example 1636.4 #42: Leyla asks for telework due to morning
sickness. Through the interactive process, it is determined that
both telework and a later schedule combined with an hour rest break
in the afternoon would allow Leyla to perform the essential
functions of her job and would not impose an undue hardship.
Although Leyla prefers telework, the employer would rather Leyla be
in the office. It would not be a violation of 42 U.S.C. 2000gg-1(5)
to offer Leyla the schedule change/rest break instead of telework as
a reasonable accommodation.
The facts set out in examples 40 and 41 could also violate 42
U.S.C. 2000gg-1(1) and 2000gg-2(f).
As stated at the beginning of this section, the PWFA has
overlapping protections for workers who request or use reasonable
accommodations. The Commission emphasizes that qualified employees with
known limitations may bring actions under any of these provisions.
Finally, the Commission seeks comment on whether there are other
factual scenarios that would violate 42 U.S.C. 2000gg-1(5) and whether
additional examples would be helpful.
Section 1636.5 Remedies and Enforcement
In crafting the PWFA remedies and enforcement section, Congress
recognized the advisability of using the existing mechanisms in place
for redress of other forms of employment discrimination. In this
regard, the PWFA and the proposed regulation provide the following:
1636.5(a) Remedies and Enforcement Under Title VII
As explained in PWFA, 42 U.S.C. 2000gg-2(a) and (e), the applicable
enforcement mechanism and remedies available to employees and others
covered by Title VII apply to the PWFA as well. The proposed rule
parallels the statutory language, noting that the powers, remedies, and
procedures provided in sections 705-707, 709-711, and 717 of Title VII,
42 U.S.C. 2000e-4, shall be the powers, remedies, and procedures
provided by the PWFA.
The Commission also emphasizes that its implementing regulations
found at 29 CFR parts 1601 (procedural regulations), 1602
(recordkeeping and reporting requirements under Title VII, the ADA, and
the Genetic Information Nondiscrimination Act (GINA)), and 1614
(Federal sector equal employment opportunity) apply to the PWFA as
well. Thus, employees covered by section 706 of Title VII may file
charges with the EEOC, and the EEOC will investigate them using the
same process as set out in Title VII. Similarly, employees covered by
section 717 of Title VII may file complaints with the relevant Federal
agency which will investigate them, and the EEOC will process appeals
using the same process as set out in Title VII for Federal employees.
1636.5(b) Remedies and Enforcement Under the Congressional
Accountability Act
Employees covered by the Congressional Accountability Act of 1995,
2 U.S.C. 1401 et seq. (CAA) must use the procedures set forth in that
statute. The Commission has no authority with respect to the
enforcement of the PWFA as to employees covered by the CAA.
1636.5(c) Remedies and Enforcement Under Chapter 5 of Title 3, United
States Code
The applicable procedures and available remedies for employees
covered by 3 U.S.C. 401 et seq. are set forth in 3 U.S.C. 451-454.
These sections provide for counseling and mediation of employment
discrimination allegations and the formal processing of complaints
before the Commission using the same administrative process generally
applicable to employees in the Executive Branch of the Federal
Government; that is, the process set forth in 29 CFR part 1614.
1636.5(d) Remedies and Enforcement Under GERA
The applicable procedures and available remedies for employees
covered by sections 302 and 304 of the Government Employee Rights Act
of 1991, 42 U.S.C. 2000e-16b and -16c (GERA), apply under the PWFA.
EEOC regulations applicable to GERA are found at 29 CFR part 1603.
1636.5(e) Remedies and Enforcement Under Section 717 of the Civil
Rights Act of 1964
The applicable procedures and available remedies for employees
covered by section 717 of the Civil Rights Act of 1964, 42 U.S.C.
2000e-16, apply under the PWFA.
Damages
As with other Federal employment discrimination laws, the PWFA
provides for recovery of pecuniary and non-pecuniary damages, including
compensatory and punitive damages. The statute's incorporation by
reference of section 1977A of the Revised Statutes of the United
States, 42 U.S.C. 1981a, also imports the limitations on the recovery
of compensatory damages for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
other nonpecuniary losses, and punitive damages generally applicable in
employment discrimination cases, depending on the size of the employer.
Punitive damages are not available in actions against the Federal
Government or against State or local government employers. The proposed
rule lays out these requirements involving damages in separate
paragraphs under Sec. 1636.5(a)-(e).
[[Page 54743]]
Poster Requirement
Because the PWFA adopts the powers, remedies, and procedures
provided in various sections of Title VII, including section 711,
covered entities are required to post notices in conspicuous places
describing applicable PWFA provisions. The Commission published an
updated EEO poster that includes the PWFA when the PWFA went into
effect.
1636.5(f) Prohibition Against Retaliation
The anti-retaliation provisions of the PWFA should be interpreted
broadly, like those of Title VII and the ADA, to effectuate Congress's
broad remedial purpose in enacting these laws.\157\ The protections of
these provisions extend beyond qualified employees and applicants with
known limitations and cover activity that may not yet have occurred,
such as a circumstance in which a covered entity threatens an employee
or applicant with termination if they file a charge or requires an
employee or applicant to sign an agreement that prohibits such
individual from filing a charge with the EEOC.\158\
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\157\ EEOC, Enforcement Guidance on Retaliation and Related
Issues II.A, A.1 (2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues [hereinafter
Enforcement Guidance on Retaliation] (describing the broad
protection of the participation clause); id. at A.2, A.2.a
(describing the broad protection of the opposition clause).
\158\ EEOC, Enforcement Guidance on Non-Waivable Employee Rights
under EEOC Enforced Statutes II (1997), https://www.eeoc.gov/laws/guidance/enforcement-guidance-non-waivable-employee-rights-under-eeoc-enforced-statutes (``[P]romises not to file a charge or
participate in an EEOC proceeding are null and void as a matter of
public policy. Agreements extracting such promises from employees
may also amount to separate and discrete violations of the anti-
retaliation provisions of the civil rights statutes.'').
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1636.5(f)(1) Prohibition Against Retaliation
The proposed regulation reiterates the statutory prohibition
against retaliation from 42 U.S.C. 2000gg-2(f)(1), which uses the same
language as Title VII and the ADA.\159\ Thus, the types of conduct
prohibited and the standard for determining what constitutes
retaliatory conduct under the PWFA are the same as they are under Title
VII. Accordingly, this provision prohibits discrimination against
individuals who engage in protected activity, which includes
```participating' in an EEO process or `opposing' discrimination.''
\160\ Title VII's anti-retaliation provision is broad and protects an
individual from conduct, whether related to employment or not, that a
reasonable person would have found ``materially adverse,'' meaning that
the action ``well might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.'' \161\ The same
interpretation applies to the PWFA's anti-retaliation provision.\162\
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\159\ 42 U.S.C. 2000e-3(a); 42 U.S.C. 12203(a).
\160\ Enforcement Guidance on Retaliation, supra note 157, at
II.A; see also id. at II.A.1-A.2 (describing protected activity
under Title VII's anti-retaliation clause).
\161\ Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (internal citations and quotations omitted).
\162\ All retaliatory conduct under Title VII (and the ADA),
including retaliation that takes the form of harassment, is
evaluated under the legal standard for retaliation. See Enforcement
Guidance on Retaliation, supra note 157, at II.B.3.
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The proposed rule contains five other provisions based on the
statutory language and established anti-retaliation concepts under
Title VII and the ADA.
First, like Title VII and the ADA, the proposed rule protects
employees, applicants, and former employees because 42 U.S.C. 2000gg-
2(f)(1) protects ``employees,'' not ``qualified employees with a known
limitation.'' Therefore, the proposed rule states that an employee,
applicant, or former employee need not establish that they have a known
limitation or are qualified under the PWFA to bring a claim under 42
U.S.C. 2000gg-2(f)(1).\163\ Second, the proposed rule explains that,
consistent with the ADA and Title VII, a request for a reasonable
accommodation under the PWFA constitutes protected activity, and
therefore retaliation for such a request is prohibited.\164\ Third, the
proposed rule provides that an employee, applicant, or former employee
does not have to actually be deterred from exercising or enjoying
rights under this section for the retaliation to be actionable.\165\
Fourth, as explained in the preamble's discussion of the documentation
that can be required in support of a request for reasonable
accommodation, the proposed rule notes that it may violate this section
for a covered entity to require documentation when it is not reasonable
under the circumstances to determine whether to provide the
accommodation. Finally, the proposed rule explains that when an
employee or applicant provides sufficient documentation to describe the
relevant limitation and need for accommodation, continued efforts on
the covered entity's part to obtain documentation violates the
retaliation prohibition unless the covered entity has a good faith
belief that the submitted documentation is insufficient.
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\163\ See Enforcement Guidance on Retaliation, supra note 157,
at III (recognizing that under the ADA, individuals need not
establish that they are covered under the statute's substantive
discrimination provisions in order to be protected against
retaliation); id. at II.A.3; see also Robinson v. Shell Oil Co., 519
U.S. 337, 346 (1997) (holding that Title VII protects former
employees from retaliation).
\164\ Enforcement Guidance on Retaliation, supra note 157, at
II.A.2.e and Example 10.
\165\ Id. at II.B.1, B.2 (stating that the retaliation
``standard can be satisfied even if the individual was not in fact
deterred'' and that ``[i]f the employer's action would be reasonably
likely to deter protected activity, it can be challenged as
retaliation even if it falls short of its goal'').
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1636.5(f)(2) Prohibition Against Coercion
The PWFA's anti-coercion provision uses the same language as the
ADA's interference provision, with one minor variation in the title of
the section.\166\ Similar to the ADA, the scope of the PWFA coercion
provision is broader than the anti-retaliation provision; it reaches
those instances ``when conduct does not meet the `materially adverse'
standard required for retaliation.'' \167\
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\166\ The ADA uses the term ``Interference, coercion, or
intimidation'' to preface the prohibition against interference (42
U.S.C. 12203(b)), whereas the PWFA uses ``Prohibition against
coercion.'' The language of the prohibitions is otherwise identical.
\167\ Enforcement Guidance on Retaliation, supra note 157, at
III.
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The proposed rule follows the language of 42 U.S.C. 2000gg-2(f)(2)
and protects ``individuals,'' not ``qualified employees with a known
limitation under the PWFA.'' Thus, the proposed rule specifies that,
consistent with the ADA's interference provisions, the individual need
not be an employee, applicant, or former employee and need not
establish that they have a known limitation or that they are qualified
(as those terms are defined in the PWFA) to bring a claim for coercion
under the PWFA.\168\
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\168\ Id.
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The purpose of this provision is to ensure that workers are free to
avail themselves of the protections of the statute. Thus, consistent
with the ADA regulations for the same provision, the proposed rule adds
``harass'' to the list of prohibitions, as harassment may be a method
to coerce a worker into not availing themselves of their PWFA
rights.\169\ The proposed rule also states that an individual does not,
in fact, have to be deterred from exercising or enjoying rights under
this section for the coercion to be actionable.\170\
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\169\ 29 CFR 1630.12(b).
\170\ Enforcement Guidance on Retaliation, supra note 157, at
II.B.1-B.2 (noting that actions can be challenged as retaliatory
even if the person was not deterred from engaging in protected
activity).
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The proposed rule contains three examples of actions that could be
violations. First, the proposed rule states that it prohibits coercion,
intimidation, threats, harassment, or
[[Page 54744]]
interference because an individual, including an employee, applicant,
or former employee, has asked for a reasonable accommodation under the
PWFA.
Second, the proposed rule provides that coercion could include
situations in which the covered entity requires documentation in
support of a request for reasonable accommodation when it is not
reasonable under the circumstances to determine whether to provide the
accommodation.
Third, the proposed rule states that a covered entity that has
sufficient information regarding the known limitation and the need for
reasonable accommodation but continues to require additional
information or documentation violates the anti-coercion provision
unless the covered entity has a good faith belief that the
documentation is insufficient.
Some other examples of coercion include:
coercing an individual to relinquish or forgo an
accommodation to which they are otherwise entitled;
intimidating an applicant from requesting an accommodation
for the application process by indicating that such a request will
result in the applicant not being hired;
issuing a policy or requirement that purports to limit an
employee's or applicant's rights to invoke PWFA protections (e.g., a
fixed leave policy that states ``no exceptions will be made for any
reason'');
interfering with a former employee's right to file a PWFA
lawsuit against a former employer by stating that a negative job
reference will be given to prospective employers if the suit is filed;
and
subjecting an employee to unwarranted discipline,
demotion, or other adverse treatment because they assisted a coworker
in requesting a reasonable accommodation.\171\
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\171\ Id. at III.
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Examples of Retaliation and/or Coercion
Actions that the courts or the Commission have previously
determined may qualify as retaliation or coercion under Title VII or
the ADA may qualify under the PWFA as well. Depending on the facts, a
covered entity's retaliatory action for activity protected under the
PWFA may violate 42 U.S.C. 2000gg-1(5), 2000gg-2(f)(1) and/or 2000gg-
2(f)(2), as implemented by proposed rule Sec. Sec. 1636.4(e) and
1636.5(f). The following examples would likely violate 42 U.S.C.
2000gg-2(f) and may also violate 42 U.S.C. 2000gg-1(5).
Example 1636.5 #43: Perrin requests a stool due to pregnancy.
Lucy, Perrin's supervisor, denies Perrin's request. The corporate
human resources department instructs Lucy to grant the request
because there is no undue hardship. Angry about being overruled,
Lucy thereafter gives Perrin an unjustified poor performance rating
and denies Perrin's request to attend training that Lucy approves
for Perrin's coworkers.
Example 1636.5 #44: Marisol files an EEOC charge after Cyrus,
her supervisor, refused to provide her with the reasonable
accommodation of help with lifting after her cesarean section.
Marisol also alleges that after she asked for the accommodation,
Cyrus asked two coworkers to conduct surveillance on Marisol,
including watching her at work, noting with whom she associated in
the workplace, suggesting to other employees that they should avoid
her, and reporting her breaks to Cyrus.
Example 1636.5 #45: Mara provides her employer with a note from
her health care provider explaining that she is pregnant, has
morning sickness, and needs to start work later on certain days.
Mara's supervisor requires that Mara confirm the pregnancy through
an ultrasound, even though the employer already has sufficient
information regarding Mara's pregnancy.
Example 1636.5 #46: During an interview at an employment agency,
Arden tells the human resources staffer, Stanley, that Arden is
dealing with complications from their recent childbirth and may need
time off for doctor's appointments during their first few weeks at
work. Stanley counsels Arden that needing leave so soon after
starting will be a ``black mark'' on their application.
Example 1636.5 #47: Merritt, a client of an employment agency,
is discharged from an employer after requesting an accommodation
under the PWFA. The employment agency refuses to refer Merritt to
other employers, telling Merritt that they only refer workers who
will not cause any trouble.
Example 1636.5 #48: Jessie, a factory union steward, ensures
that workers know about their rights under the PWFA and encourages
workers with known limitations to ask for reasonable accommodations.
Jessie helps employees navigate the reasonable accommodation process
and provides suggestions of possible reasonable accommodations.
Factory supervisors are annoyed at the number of PWFA reasonable
accommodation requests and write up Jessie for petty safety
violations and other actions that had not been worthy of discipline
before.
Example 1636.5 #49: While she was pregnant, Laila requested and
received the reasonable accommodation of a temporary suspension of
the essential function of moving heavy boxes and placement in the
light duty program. After giving birth, Laila tells her employer
that she has decided to resign and stay home for a year. Her
employer responds by saying that if Laila follows through and
resigns now, the employer will have no choice but to give her a
negative reference because Laila demanded an accommodation but did
not have the loyalty to come back after having her baby.
Example 1636.5 #50: Robbie, a retail worker, is visibly pregnant
and would like to sit while working at the cash register. Robbie
explains the situation to the manager, who requires Robbie to
produce a signed doctor's note saying that Robbie is pregnant and
needs to sit. Because Robbie is obviously pregnant, has confirmed
the pregnancy, and requests one of the simple modifications that
will virtually always be found to be a reasonable accommodation that
does not impose an undue hardship, the covered entity is not
permitted to require additional medical documentation.
Protection of Confidential Medical Information
As explained in the preamble's discussion of Sec. 1636.3(l)
Documentation, the established ADA rules requiring covered entities to
keep medical information of applicants, employees, and former employees
confidential apply to medical information obtained in connection with a
reasonable accommodation request under the PWFA.\172\ Medical
information obtained by the employer in the process of a worker seeking
a reasonable accommodation under the PWFA must be protected as set out
in the ADA and failing to do so would violate the ADA. For example, the
fact that someone is pregnant or has recently been pregnant, is medical
information about that person, as is the fact that they have a medical
condition related to pregnancy or childbirth. Thus, disclosing that
someone is pregnant, has recently been pregnant, or has a related
medical condition violates the ADA, unless an exception applies, as
does disclosing that someone is receiving or has requested an
accommodation under the PWFA or has limitations for which they
requested or are receiving a reasonable accommodation under the PWFA
(because revealing this information discloses that the person is
pregnant, has recently been pregnant, or has a related medical
condition).\173\
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\172\ Enforcement Guidance on Disability-Related Inquiries,
supra note 114, at text accompanying n.9; EEOC, Enforcement
Guidance: Preemployment Disability-Related Questions and Medical
Examinations, at text accompanying n.6 and nn.23-25 (1995), https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical.
\173\ 29 CFR 1630.14(c); Enforcement Guidance on Disability-
Related Inquiries, supra note 114, at A.
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In addition, releasing medical information, threatening to release
medical information, or requiring an employee or applicant to share
their medical information with individuals who have no role in
processing a request for reasonable accommodation may violate the
PWFA's retaliation and coercion provisions.\174\
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\174\ See Sec. 1636.5(f)(1) and (2).
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[[Page 54745]]
1636.5(f)(3) Remedies for Retaliation and Coercion
The PWFA provides that the remedies and procedures for retaliation
and coercion claims are the same as the remedies and procedures used
for the PWFA nondiscrimination provisions. The proposed rule reiterates
the statutory language on this subject.
1636.5(g) Good Faith Efforts
The PWFA at 42 U.S.C. 2000gg-2(g) and the proposed rule, using the
language of the Civil Rights Act of 1991, 42 U.S.C. 1981(a)(3), provide
a limitation on damages based on a ``good faith effort'' to provide a
reasonable accommodation. Specifically, damages may not be awarded if
the covered entity demonstrates good faith efforts, in consultation
with the employee with a known limitation, to identify and make a
reasonable accommodation that would provide the employee with an
equally effective opportunity and would not cause an undue hardship.
The covered entity bears the burden of proof for this affirmative
defense.
Section 1636.6 Waiver of State Immunity
Because States are employers covered by Title VII, and the PWFA
adopts Title VII's definition of employers, States are employers
covered by the PWFA. The PWFA at 42 U.S.C. 2000gg-4 waives State
immunity under the 11th Amendment in an action in a Federal or State
court of competent jurisdiction for a violation of the PWFA. The PWFA
at 42 U.S.C. 2000gg-4 also makes remedies at law and in equity
available in actions under the PWFA against States to the same extent
that such remedies are available for such a violation against any
public or private entity other than a State.
Section 1636.7 Relationship to Other Laws
The PWFA at 42 U.S.C. 2000gg-5 and this section of the proposed
regulation address the PWFA's relationship to other Federal, State, and
local laws.
1636.7(a) Relationship to Other Laws Generally
42 U.S.C. 2000gg-5(a)(1) addresses the relationship of the PWFA to
other Federal, State, and local laws governing protections for
individuals affected by pregnancy, childbirth, or related medical
conditions and makes clear that the PWFA does not limit the rights of
individuals affected by pregnancy, childbirth, or related medical
conditions under a Federal, State, or local law that provides greater
or equal protection. It is equally true that Federal, State, or local
laws that provide less protection for individuals affected by
pregnancy, childbirth, or related medical conditions than the PWFA do
not limit the rights provided by the PWFA. The proposed regulation
reiterates the statutory provision addressing the relationship of the
PWFA to other Federal, State, and local laws governing protections for
individuals affected by pregnancy, childbirth, or related medical
conditions.
Thirty States and five localities have laws that provide
accommodations for pregnant workers.\175\ Federal laws, including, but
not limited to, Title VII, the ADA, the FMLA, the Rehabilitation Act,
and the PUMP Act, also provide protections for certain workers affected
by pregnancy, childbirth, or related medical conditions.\176\ All of
the protections regarding discrimination based on pregnancy,
childbirth, or related medical conditions in these laws are unaffected
by the PWFA. Additionally, if there are greater protections in other
laws, those would apply. For example, the State of Washington's Healthy
Starts Act provides that certain accommodations, including lifting
restrictions of 17 pounds or more, cannot be the subject of an undue
hardship analysis.\177\ If a worker in Washington is seeking a lifting
restriction as a reasonable accommodation for a pregnancy-related
reason under the Healthy Starts Act, an employer in Washington cannot
argue that a lifting restriction of 20 pounds is an undue hardship,
even though that defense could be raised if the claim were brought
under the PWFA.
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\175\ Employment Protections for Workers Who Are Pregnant or
Nursing, supra note 5.
\176\ For an explanation of the interaction between the FMLA and
the ADA, see 29 CFR 825.702.
\177\ Wash. Rev. Code 43.10.005(1)(d).
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Furthermore, employees and applicants may bring claims under
multiple State or Federal laws. Thus, a pregnant applicant denied a
position because they are pregnant and will need leave for recovery
from childbirth may bring a claim under both Title VII for sex
discrimination and the PWFA for the denial of an employment opportunity
based on the applicant's need for an accommodation. Similarly, a worker
with postpartum depression who, for that reason, is denied an equal
employment opportunity may bring a claim under both the PWFA and the
ADA, and possibly Title VII.
Under Title VII, employees affected by pregnancy, childbirth, or
related medical conditions may be able to receive accommodations if
they can identify a comparator ``similar in their ability or inability
to work.'' \178\ Under the PWFA, employees affected by pregnancy,
childbirth, or related medical conditions will be able to seek
reasonable accommodations whether or not other employees have those
accommodations and whether or not the affected employees are similar in
their ability or inability to work as employees not so affected.
Additionally, if the covered entity offers a neutral reason or policy
to explain why employees affected by pregnancy, childbirth or related
medical conditions cannot access a specific benefit, the employee with
a known limitation under the PWFA still may ask for a waiver of that
policy as a reasonable accommodation. Under the PWFA, the employer must
grant the waiver, or another reasonable accommodation, absent undue
hardship. If, for example, an employer denies a pregnant worker's
request to join its light duty program as a reasonable accommodation,
arguing that the program is for workers with on-the-job injuries, it
may be difficult for the employer to prove that allowing the worker
with a known limitation under the PWFA to use that program is an undue
hardship. Finally, employers in this situation should remember that if
there are others to whom the benefit is extended, the Young v. United
Parcel Serv., Inc., Court stated that ``[the employer's] reason [for
refusing to accommodate a pregnant employee] normally cannot consist
simply of a claim that it is more expensive or less convenient to add
pregnant women to the category of those . . . whom the employer
accommodates.'' \179\ Thus, if the undue hardship defense of the
employer under the PWFA is based solely on cost or convenience, that
defense could, under certain fact patterns, lead to liability under
Title VII.
---------------------------------------------------------------------------
\178\ 42 U.S.C. 2000e(k).
\179\ Young, 575 U.S. at 229.
---------------------------------------------------------------------------
42 U.S.C. 2000gg-5(a)(2) makes clear that an employer-sponsored
health plan is not required under the PWFA to pay for or cover any
item, procedure, or treatment and that the PWFA does not affect any
right or remedy available under any other Federal, State, or local law
with respect to any such payment or coverage requirement. For example,
nothing in the PWFA requires or forbids an employer to pay for health
insurance benefits for an abortion. The proposed regulation, at Sec.
1636.6, reiterates the statutory provision regarding such coverage.
[[Page 54746]]
1636.7(b) Rule of Construction
42 U.S.C. 2000gg-5(b) provides a ``[r]ule of construction'' \180\
stating that the law is ``subject to the applicability to religious
employment'' set forth in section 702(a) of the Civil Rights Act of
1964, 42 U.S.C. 2000e-1(a). The relevant portion of section 702(a)
provides that ``[Title VII] shall not apply . . . to a religious
corporation, association, educational institution, or society with
respect to the employment of individuals of a particular religion to
perform work connected with the carrying on by such corporation,
association, educational institution, or society of its activities.''
\181\
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\180\ 42 U.S.C. 2000gg-5(b) (heading).
\181\ The PWFA makes no mention of section 703(e)(2) of the
Civil Rights Act of 1964, which provides a second statutory
exemption for religious educational institutions in certain
circumstances.
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The proposed regulation reiterates the PWFA's statutory language
and adds that nothing in the text of the proposed rule limits the
rights of covered entities under the U.S. Constitution, and that
nothing in the proposed rule or 42 U.S.C. 2000gg-5(b) limits the rights
of an employee, applicant, or former employee under other civil rights
statutes. As with assertions of section 702(a) in Title VII matters,
when 42 U.S.C. 2000gg-5(b) is asserted by a respondent employer, the
Commission will consider the application of the provision on a case-by-
case basis.\182\
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\182\ The EEOC's procedures ensure that employers have an
opportunity to raise religious defenses and that any religious
defense to a charge of discrimination is carefully considered. See
Religious Discrimination Compliance Manual, supra note 145, at 12-
I(C)(3) (discussing the ``nuanced balancing'' required and
instructing investigators to ``take great care''); 29 CFR 1601 et
seq. (setting out the EEOC's charge procedures). The EEOC recognizes
employers' valid religious defenses and dismisses charges at the
administrative stage accordingly. See Newsome v. EEOC, 301 F.3d 227,
229-230 (5th Cir. 2002) (per curiam) (EEOC dismissed a charge where
the employer offered evidence it fell under the religious
organization exemption). The EEOC has no authority to impose
penalties on private employers, see Occidental Life Ins. Co. of Cal.
v. EEOC, 432 U.S. 355, 363 (1977); thus, if the EEOC rejects a
private employer's asserted religious defense, the EEOC cannot force
the employer to resolve the charge or pay any type of damages. To
obtain any type of relief if the EEOC is unsuccessful at obtaining
voluntary compliance, the EEOC would have to bring a case in Federal
court, where the validity of the employer's religious defense would
be determined.
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Given the Commission's obligation to give effect to the remedial
purpose of the PWFA and provide examples of how the statute's
reasonable accommodation requirement applies in certain circumstances,
the Commission is considering whether to provide examples that
implicate 42 U.S.C. 2000gg-5(b) and whether to adopt a more detailed
rule setting forth a specific interpretation of 42 U.S.C. 2000gg-5(b)
that would inform the Commission's case-by-case consideration of
whether that provision applies to a particular set of facts. The
Commission therefore seeks information on how section 702(a) of Title
VII, adopted as a rule of construction in PWFA at 42 U.S.C. 2000gg-
5(b), may apply in the context of concrete factual scenarios.\183\
Specifically, the Commission invites the public to provide examples of:
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\183\ PWFA, 42 U.S.C. 2000gg-5(b).
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(1) What accommodations provided under PWFA, 42 U.S.C. 2000gg-1,
may impact a religious organization's employment of individuals of a
particular religion, and what accommodations may not impact a religious
organization's employment of such individuals;
(2) How accommodations provided under PWFA, 42 U.S.C. 2000gg-1, may
affect those individuals' performance of work connected with the
religious organization's activities, and when they may not affect those
individuals' performance of such work;
(3) When the prohibition on retaliatory or coercive actions in
PWFA, 42 U.S.C. 2000gg-2(f), may impact a religious organization's
employment of individuals of a particular religion, and when it may not
impact a religious organization's employment of such individuals;
(4) When prohibiting retaliatory or coercive actions as described
in PWFA, 42 U.S.C. 2000gg-2(f), may affect those individuals'
performance of work connected with the religious organization's
activities, and when it may not affect those individuals' performance
of such work; and
(5) Whether any of the above factual scenarios is expected to arise
with such regularity that, to facilitate compliance with this
provision, the public would benefit from the Commission providing a
more detailed interpretation of PWFA, 42 U.S.C. 2000gg-5(b), that would
inform the Commission's case-by-case consideration of whether that
provision applies to a particular set of facts. Possible alternatives
for a more detailed interpretation of 42 U.S.C. 2000gg-5(b) that the
Commission could adopt include: (a) a rule of construction that
``allows religious institutions to continue to prefer coreligionists in
the pregnancy accommodation context,'' specifically in connection with
accommodations that involve reassignment to a job or to duties for
which a religious organization has decided to employ a coreligionist;
\184\ or (b) a rule that construes the PWFA as not requiring a
religious entity to make any accommodation that would conflict with the
entity's religion.\185\
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\184\ See 168 Cong. Rec. H10,527-28 (daily ed. Dec. 23, 2022)
(statement of Rep. Jerrold Nadler).
\185\ See 168 Cong. Rec. S10,063, S10,070 (daily ed. Dec. 22,
2022) (statement of Senator Bill Cassidy that ``the title VII
religious exemption'' addresses the same issue as a rejected
amendment to the PWFA from Senator James Lankford, which stated:
``This division shall not be construed to require a religious entity
described in section 702(a) of the Civil Rights Act of 1964 to make
an accommodation that would violate the entity's religion'').
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The Commission also seeks comments regarding any alternative
interpretations of PWFA, 42 U.S.C. 2000gg-5(b), that commenters
believe, given their answers to questions 1-5, that the Commission
should consider.
The Commission will evaluate the comments it receives using the
following framework and considerations.
Ministerial Exception and RFRA
Religious entities may have a defense to a PWFA claim under the
First Amendment or the Religious Freedom Restoration Act (RFRA).
Under the religion clauses of the First Amendment, a religious
organization may, in certain circumstances, select those who will
``personify its beliefs,'' ``shape its own faith and mission,'' or
``minister to the faithful.'' \186\ This rule is known as the
``ministerial exception'' and may provide an affirmative defense to an
otherwise cognizable claim under certain anti-discrimination laws,
including Title VII \187\ and the PWFA. The exception applies to
discrimination claims involving the selection, supervision, and removal
by a religious institution of employees who perform vital religious
duties at the core of the mission of the religious institution.\188\ In
determining whether the ministerial exception applies to a claim, the
Commission applies the Supreme Court's reasoning in Hosanna-Tabor
Evangelical Lutheran Church & School v. EEOC \189\ and Our Lady of
Guadalupe School v. Morrissey-Berru \190\ on a case-by-case basis,
including reviewing the factors set out by the Supreme Court.
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\186\ Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,
565 U.S. 171, 188-89 (2012).
\187\ Religious Discrimination Compliance Manual, supra note
145, at 12-I.C.2.
\188\ Id. at 12-I.C.2 (noting that ``unlike the statutory
religious organization exemption, the ministerial exception applies
regardless of whether the challenged employment decision was for
`religious' reasons'').
\189\ 565 U.S. at 190-94.
\190\ 140 S. Ct. 2049, 2063-69 (2020).
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RFRA provides that ``[g]overnment shall not substantially burden a
person's
[[Page 54747]]
exercise of religion'' even if the burden ``results from a rule of
general applicability'' except when the burden ``is in furtherance of a
compelling governmental interest'' and ``is the least restrictive means
of furthering that compelling governmental interest.'' \191\ Most
courts to consider the issue have held that a RFRA defense does not
apply in suits involving only private parties.\192\ The Commission
carefully considers assertions of a defense under RFRA on a case-by-
case basis.\193\
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\191\ 42 U.S.C. 2000bb-1(a)-(b).
\192\ See, e.g., Listecki v. Off. Comm. of Unsecured Creditors,
780 F.3d 731, 736-37 (7th Cir. 2015); Gen. Conf. Corp. of Seventh-
Day Adventists v. McGill, 617 F.3d 402, 409-12 (6th Cir. 2010). The
Second Circuit has held otherwise, Hankins v. Lyght, 441 F.3d 96,
103-04 (2d Cir. 2006) (holding that an employer could raise RFRA as
a defense to an employee's Age Discrimination in Employment Act
(ADEA) claim because the ADEA is enforceable both by the EEOC and
private litigants), but the court has questioned the correctness of
Hankins given the text of RFRA, Rweyemamu v. Cote, 520 F.3d 198, 203
& n.2 (2d Cir. 2008).
\193\ Religious Discrimination Compliance Manual, supra note
145, at 12-I.C.3 (counseling EEOC investigators to ``take great
care'' in situations involving the First Amendment and RFRA).
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Section 702(a) of the Civil Rights Act of 1964
Entities Considered Religious Organizations
Under section 702(a) of the Civil Rights Act of 1964, an employer
that is a ``religious corporation, association, educational
institution, or society'' qualifies for the religious exemption set
forth in that provision. This exemption only applies to those
organizations whose purpose and character are primarily religious.
Courts have articulated different factors to determine whether an
entity is a religious organization, including: (1) whether the entity
operates for a profit; (2) whether it produces a secular product; (3)
whether the entity's articles of incorporation or other pertinent
documents state a religious purpose; (4) whether it is owned,
affiliated with, or financially supported by a formally religious
entity such as a church or synagogue; (5) whether a formally religious
entity participates in the management, for instance by having
representatives on the board of trustees; (6) whether the entity holds
itself out to the public as secular or sectarian; (7) whether the
entity regularly includes prayer or other forms of worship in its
activities; (8) whether it includes religious instruction in its
curriculum, to the extent it is an educational institution; and (9)
whether its membership is made up by coreligionists.\194\
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\194\ LeBoon v. Lancaster Jewish Cmty. Ctr., 503 F.3d 217, 226
(3d Cir. 2007); Religious Discrimination Compliance Manual, supra
note 145, at 12-I.C.1.
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Courts have recognized that engaging in secular activities does not
disqualify an employer from being a ``religious organization'' within
the meaning of section 702(a).\195\ Section 702(a) does not distinguish
between nonprofit and for-profit status, and Title VII case law has not
definitively determined whether a for-profit corporation that satisfies
the other factors referenced above can constitute a religious
corporation under Title VII.\196\ When the religious organization
exemption is asserted by a respondent employer, the Commission
considers on a case-by-case basis whether an employer is a religious
organization, utilizing the factors outlined above; no one factor is
dispositive in determining if a covered entity is a religious
organization under section 702(a).
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\195\ See, e.g., LeBoon, 503 F.3d at 229 (holding that a Jewish
community center was a religious organization under Title VII,
despite engaging in secular activities such as secular lectures and
instruction with no religious content, employing overwhelmingly
Gentile employees, and failing to ban non-kosher foods).
\196\ Religious Discrimination Compliance Manual, supra note
145, at 12-I.C.1; see LeBoon, 503 F.3d at 229 (stating that ``the
religious organization exemption would not extend to an enterprise
involved in a wholly secular and for-profit activity''); see also
EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 619 (9th Cir. 1988)
(holding that evidence the company was for profit, produced a
secular product, was not affiliated with a church, and did not
mention a religious purpose in its formation documents, indicated
that the business was not ``primarily religious'' and therefore did
not qualify for the religious organization exemption).
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Application of Section 702(a) to Sex- and Pregnancy-Based
Discrimination and the PWFA
``Religious organizations are subject to the Title VII prohibitions
against discrimination on the basis of race, color, sex, and national
origin (as well as the anti-discrimination provisions of the other EEO
laws such as the ADEA, ADA, and GINA), and they may not engage in
related retaliation.'' \197\ Indeed, every U.S. court of appeals to
have considered the question has held that section 702(a) does not
exempt religious organizations from Title VII's prohibitions against
discrimination when an employment decision is based upon race, color,
sex, or national origin.\198\ However, the Commission has previously
stated that a qualified religious organization may argue as a defense
that it made the challenged decision on the basis of religion.\199\
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\197\ Religious Discrimination Compliance Manual, supra note
145, at 12-I.C.1 n.65 (citing Kennedy v. St. Joseph's Ministries,
Inc., 657 F.3d 189, 192 (4th Cir. 2011) (holding that the exemption
``does not exempt religious organizations from Title VII's
provisions barring discrimination on the basis of race, gender, or
national origin''); Boyd v. Harding Acad. of Memphis, Inc., 88 F.3d
410, 413 (6th Cir. 1996) (stating that the exemption ``does not . .
. exempt religious educational institutions with respect to all
discrimination''); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 173
(2d Cir. 1993) (``Religious institutions that otherwise qualify as
`employer[s]' are subject to Title VII provisions relating to
discrimination based on race, gender and national origin''); Rayburn
v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th
Cir. 1985) (``While the language of Sec. 702 makes clear that
religious institutions may base relevant hiring decisions upon
religious preferences, Title VII does not confer upon religious
organizations a license to make those same decisions on the basis of
race, sex, or national origin.''); cf. Garcia v. Salvation Army, 918
F.3d 997, 1004-05 (9th Cir. 2019) (holding that Title VII
retaliation and hostile work environment claims related to religious
discrimination were barred by the religious organization exception,
but adjudicating the disability discrimination claim on the
merits)).
\198\ Id. For additional information about the Commission's
position on the scope of section 702(a), see Religious
Discrimination Compliance Manual, supra note 145, at 12-I-C.1,
nn.67, 69-70.
\199\ See Religious Discrimination Compliance Manual, supra note
145, at 12-I-C.1; but see Rescission of Implementing Legal
Requirements Regarding the Equal Opportunity Clause's Religious
Exemption Rule, 88 FR 12842, 12854 (Mar. 1, 2023) (``In OFCCP's
view, however, the cases cited in the EEOC's 2021 Compliance Manual
do not support the proposition that asserting such a defense exempts
the organization from the Title VII prohibitions against
discrimination on the basis of race, color, sex, and national
origin.'').
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The PWFA addresses sex discrimination by making it an unlawful
employment practice for a covered entity to deny a reasonable
accommodation (absent undue hardship) to a qualified employee with a
known limitation related to pregnancy, childbirth, or related medical
conditions,\200\ and uses the same language as Title VII's definition
of sex.\201\ Because the PWFA uses the same language as Title VII and,
like Title VII, addresses sex discrimination, it is logical that the
language in the rule of construction set forth in 42 U.S.C. 2000gg-5(b)
of the PWFA should be interpreted the same as the Title VII language.
The Title VII language does not categorically exempt religious
organizations from making reasonable accommodations to the known
limitations of employees under the PWFA.
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\200\ 42 U.S.C. 2000gg-1(1); see, e.g., 42 U.S.C. 12112(b)(5)(A)
(listing the denial of reasonable accommodations under the ADA as a
type of discrimination).
\201\ 42 U.S.C. 2000gg(4); see 42 U.S.C. 2000e(k).
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Additional Considerations
The Commission's review of the comments regarding this provision
also will be informed by the fact that individuals may bring claims
under
[[Page 54748]]
both Title VII and the PWFA; the legislative history of the PWFA, which
is different from that of Title VII; and possible decisions by the
courts of appeals in pending cases.\202\
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\202\ E.g., Billard v. Charlotte Cath. High Sch., No. 3:17-cv-
00011, 2021 WL 4037431 (W.D.N.C. Sept. 3, 2021) (rejecting a
Catholic school's argument that it was exempt from the plaintiff's
sex-based discrimination claims under Title VII's religious
exemption provisions), appeal filed (4th Cir. Apr. 25, 2022);
Garrick v. Moody Bible Inst., 494 F. Supp. 3d 570, 576-77 (N.D. Ill.
2020) (rejecting religious educational institution's argument that
it was exempt, under section 702(a), from the plaintiff's sex
discrimination and retaliation claims where the plaintiff alleged
that her employer's asserted ``religious justification [for firing
her was] a pretext for gender discrimination'') (emphasis in
original), appeal filed (7th Cir. Sept. 14, 2021).
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Section 1636.8 Severability
The PWFA at 42 U.S.C. 2000gg-6 contains a severability provision
that allows for parts of the statute to continue to be applicable even
if other parts are held invalid as to particular persons or held
unconstitutional. The proposed regulation repeats the statutory
provision and also addresses the Commission's intent regarding the
severability of the Commission's proposed regulation.
Following Congress's rule for the statute, in places where the
proposed regulation uses the same language as the statute, if any of
those identical proposed regulatory provisions, or the application of
those provisions to particular persons or circumstances, is held
invalid or found to be unconstitutional, the remainder of the
regulation and the application of that provision of the regulation to
other persons or circumstances shall not be affected. For example, if
Sec. 1636.4(b) of the regulation is held to be invalid or
unconstitutional, it is the intent of the Commission that the remainder
of the regulation shall not be affected.
In other places, where the proposed regulation provides additional
guidance to carry out the PWFA, including examples of reasonable
accommodations, following Congress's intent regarding the severability
of the provisions of the statute, it is the Commission's intent that if
any of those proposed regulatory provisions or the application of those
provisions to particular persons or circumstances is held invalid or
found to be unconstitutional, the remainder of the regulation and the
application of that provision of the regulation to other persons or
circumstances shall not be affected. For example, if Sec. 1636.3(j)(4)
is held to be invalid or unconstitutional, it is the Commission's
intent that the remainder of the regulation shall not be affected.
Consolidated List of NPRM Directed Questions
The Commission encourages the public to comment on the proposed
rule in general. In addition, the Commission specifically seeks comment
on the following topics:
1. Section 1636.3(d): Definition of ``Communicated to the Employer''
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.
2. Section 1636.3(f)(2)(i)-(iii): Definitions of ``Temporary,'' ``In
the Near Future,'' and ``The Inability To Perform the Essential
Function Can Be Reasonably Accommodated''
The Commission seeks comment regarding the proposed definitions
of the terms from 42 U.S.C. 2000gg(6)(A)-(C) (``temporary,'' ``in
the near future,'' and ``the inability to perform the essential
function can be reasonably accommodated''), 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 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.
3. Section 1636.3(g): Definition of ``Essential Functions''
The Commission seeks comment on whether there are additional
factors that should be considered in determining whether a function
is essential for purposes of the PWFA. 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.
4. Section 1636.3(h): Ensuring That Workers Are Not Penalized for Using
Reasonable Accommodations
The Commission seeks comment on its explanation ensuring that
workers are not penalized for using reasonable accommodations,
whether there are other situations where this may apply, and whether
examples would be helpful to illustrate this point.
5. Section 1636.3(i): Reasonable Accommodation Examples
Throughout the preamble, the Commission provides examples of
reasonable accommodations and related analysis. 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.
6. Section 1636.3(i) Reasonable Accommodation Examples
The Commission seeks comment on whether there are examples or
other information that should be included to account for situations
in which a worker who already has a reasonable accommodation for an
existing disability (1) develops a known limitation and needs new
accommodations or modifications to their existing reasonable
accommodations or (2) needs to ensure the continuation of their
disability-related reasonable accommodations if the worker is moved
to another position or given different duties as part of the
reasonable accommodation for a known limitation. Further, the
Commission seeks comment on ways to ensure that in circumstances
described in this question, the respective accommodations can be
provided in a timely and coordinated way.
7. Section 1636.3(j)(4): Predictable Assessments of Undue Hardship
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.
8. Section 1636.3(l): Documentation
A. The Commission seeks comment on its proposed approach to
supporting documentation, including: (1) whether this approach
strikes the correct balance between what an employee or applicant
can provide and the interests of the covered entity; (2) whether it
is always reasonable under the circumstances for covered entities to
require confirmation of a pregnancy beyond self-attestation when the
pregnancy is not obvious; (3) if allowed, whether the confirmation
of a non-obvious pregnancy should be limited to less invasive
methods, such as the confirmation of a pregnancy through a urine
test; (4) the ability of employees or applicants to obtain relevant
information from a health care provider, particularly early in
pregnancy; and (5) whether there are other common limitations that
occur early in pregnancy, such as fatigue or morning sickness, for
which an employer should not be permitted to require documentation
beyond self-attestation.
B. Section 1636.3(l)(3): Non-Exhaustive List of Health Care
Providers. The Commission seeks comment on whether
[[Page 54749]]
other types of health care providers should be included in the non-
exhaustive list in the regulation.
C. Section 1636.3(l)(3): Appropriate Health Care Provider to
Provide Documentation. The Commission seeks comment on whether there
are situations in which an employer should be permitted to require
an employee seeking a reasonable accommodation to be examined by a
health care provider chosen by the employer; what limits that should
be placed on the employer or the health care provider; and what
effect allowing such an examination may have on the willingness of
workers to request accommodations under the PWFA.
9. Section 1636.4(1): Choosing Between Accommodations
The Commission seeks comment on whether it should include
language in the rule explaining that an employer may not
unreasonably select an accommodation that negatively effects an
employee's or applicant's employment opportunities or terms and
conditions of employment when another available accommodation would
not do so or whether the protections in 42 U.S.C. 2000gg-1(1) and
(5) and 2000gg-2(f) alone are sufficiently clear in this regard.
10. Section 1636.4(b): Requiring Employee To Accept an Accommodation
The Commission seeks comment on whether there are other factual
scenarios that would violate this provision and whether additional
examples would be helpful.
11. Section 1636.4(e): Adverse Action on Account of Requesting or Using
a Reasonable Accommodation
The Commission seeks comment on whether there are other factual
scenarios that would violate this provision and whether additional
examples would be helpful.
12. Section 1636.7(b): Rule of Construction
The Commission invites the public to provide examples of:
A. What accommodations provided under PWFA, 42 U.S.C. 2000gg-1
may impact a religious organization's employment of individuals of a
particular religion, and what accommodations may not impact a
religious organization's employment of such individuals;
B. How accommodations provided under PWFA, 42 U.S.C. 2000gg-1
may affect those individuals' performance of work connected with the
religious organization's activities, and when they may not affect
those individuals' performance of such work;
C. When the prohibition on retaliatory or coercive actions in
PWFA, 42 U.S.C. 2000gg-2(f) may impact a religious organization's
employment of individuals of a particular religion, and when it may
not impact a religious organization's employment of such
individuals;
D. When prohibiting retaliatory or coercive actions as described
in PWFA, 42 U.S.C. 2000gg-2(f) may affect those individuals'
performance of work connected with the religious organization's
activities, and when it may not affect those individuals'
performance of such work.
E. The Commission also seeks comment regarding whether any of
the above factual scenarios are expected to arise with such
regularity that, to facilitate compliance with this provision, the
public would benefit from a more detailed rule by the Commission
than the case-by-case approach proposed and whether there are
alternative interpretations of 42 U.S.C. 2000gg-5(b) of the PWFA
that commenters believe, given their answers to questions A-D, that
the Commission should consider.
13. Economic Analysis
A. The Commission has identified five primary benefits of the
proposed rule and underlying statute. The Commission seeks comment
regarding these and any other benefits to individuals who may be
affected by the accommodations and protections set forth in the
proposed rule and the PWFA, or who may have been affected by a lack
of such accommodations and protections in the past, including
qualitative or quantitative research and anecdotal evidence.
B. The Commission seeks comment regarding whether the health
benefits that are expected to result from the PWFA and its
implementing regulations are quantifiable; in particular, the
Commission seeks comments regarding any existing data specifying how
often pregnancy-related health problems may be attributed to the
unavailability of work accommodations and the resulting cost of such
problems.
C. The Commission seeks comment regarding the ways in which the
proposed rule and the PWFA enhance human dignity, including
qualitative or quantitative research and anecdotal evidence
addressing this benefit.
D. The Commission seeks comment regarding any existing data
quantifying the proportion of pregnant workers who need workplace
accommodations.
E. The Commission seeks comment on whether the annual cost of
providing non-zero cost accommodations should be calculated based on
durable goods with a useful life of five years.
F. The Commission seeks comment regarding any existing data
quantifying the average cost of pregnancy-related accommodations.
G. The Commission seeks comment on whether 90 minutes accurately
captures the amount of time compliance activities will take for a
covered entity in States that do not already have laws substantially
similar to the PWFA and for the Federal Government, and whether 30
minutes accurately captures the amount of time compliance activities
will take for a covered entity in States that have existing laws
similar to the PWFA.
H. The Commission invites members of the public to comment on
any aspect of this IRIA, and to submit to the Commission any data
that would further inform the Commission's analysis.
I. The Commission seeks comment regarding its analysis and
conclusion that the regulation will not have a significant economic
impact on small entities; in particular, the Commission seeks
comment regarding any existing data quantifying impacts on small
entities.
J. The Commission has attempted to draft this NPRM in plain
language. The Commission invites comment on any aspect of this NPRM
that does not meet this standard.
Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14094 (Modernizing
Regulatory Review)
I. Introduction
Under Executive Order (E.O.) 12866, the Office of Information and
Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB)
determines whether a regulatory action is significant.\203\ Section
3(f) of E.O. 12866, as amended by E.O. 14094, defines a ``significant
regulatory action'' as any regulatory action that is likely to result
in a rule that may: (1) have an annual effect on the economy of $200
million or more (adjusted every three years by the Administrator of
OIRA for changes in gross domestic product); or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise legal or policy issues
for which centralized review would meaningfully further the President's
priorities or the principles set forth in the E.O.\204\
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\203\ 58 FR 51735, 51737-8 (Oct. 4, 1993), as amended by
Executive Order (E.O.) 14094, 88 FR 21879 (Apr. 11, 2023).
\204\ 58 FR at 51738, as amended by E.O. 14094, 88 FR at 21879.
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Executive Orders 12866 and 13563 direct agencies to propose or
adopt a regulation only upon a reasoned determination that its benefits
justify its costs; that it is tailored to impose the least burden on
society; that it is consistent with achieving the regulatory
objectives; and that, in choosing among alternative regulatory
approaches, the agency has selected those approaches that maximize net
benefits.\205\ E.O. 13563 recognizes that some benefits are difficult
to quantify and provides that, where appropriate and permitted by law,
agencies may consider and discuss qualitatively values that are
difficult or impossible to quantify, including equity, human dignity,
fairness, and distributive impacts.\206\
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\205\ 76 FR 3821 (Jan. 21, 2011).
\206\ Id.
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[[Page 54750]]
II. Summary
Based on our estimates, OIRA has determined this rulemaking is
significant per E.O. 12866 section 3(f)(1), as amended by E.O. 14094.
Therefore, the Commission has completed an Initial Regulatory Impact
Analysis (IRIA) as required under E.O. 12866 and E.O. 13563, as amended
by E.O. 14094.
As detailed in the Analysis section below, the proposed rule and
underlying statute are expected to provide numerous unquantifiable
benefits to qualified employees and applicants with known limitations
related to, affected by, or arising out of pregnancy, childbirth, or
related medical conditions, especially in States that currently do not
have laws substantially similar to the PWFA. It will also benefit
covered entities and the U.S. economy and society as a whole. These
unquantifiable benefits include improved maternal and infant health;
improved economic security for pregnant workers; increased equity,
human dignity, and fairness; improved clarity of enforcement standards;
and efficiencies in litigation.
The quantitative section in the analysis below provides estimates
of the two main expected costs associated with the proposed rule and
underlying statute: (a) annual costs associated with providing
reasonable accommodations to qualified applicants and employees with
known limitations related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions by employers in States that
do not currently have such a requirement, and (b) one-time
administrative costs for covered entities, which include becoming
familiar with the rule, posting new equal employment opportunity
posters,\207\ and updating EEO policies and handbooks. The Commission
expresses the quantifiable impacts in 2022 dollars and uses discount
rates of 3 and 7 percent, pursuant to OMB Circular A-4.
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\207\ The Commission posted an updated poster on its website
(https://www.eeoc.gov/poster) prior concurrent with the PWFA's
effective date of June 27, 2023.
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The analysis concludes that approximately 49.4 percent of the
reasonable accommodations that will be required by the rule and
underlying statute will have no cost to covered entities, and that the
average annual cost for the remaining 50.6 percent of such
accommodations is approximately $60.00 per year per accommodation.
Taking into account that many entities covered by the PWFA are already
required to provide such accommodations under State and local laws, the
total impact on the U.S. economy to provide reasonable accommodations
under the rule and underlying statute is estimated to be between $7.1
million and $21.2 million per year.
The estimated one-time costs associated with administrative tasks
is quite low on a per-establishment basis--between $56.76 and $170.27,
depending on the State. Despite the low per-establishment cost, the
proposed rule is a ``significant regulatory action'' under section
3(f)(1) of E.O. 12866, as amended by E.O. 14094, because the number of
regulated entities--hence the number of entities expected to incur one-
time administrative costs--is extremely large (including all public and
private employers with 15 or more employees and the Federal
Government). As a result, the Commission has concluded that the overall
cost to the U.S. economy will be in excess of $200 million.\208\ Of
course, this does not take into account the previous cost of gender
inequality in the labor market and the fact that PWFA will improve
gender equality and thus have a positive effect on the economy.
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\208\ H.R. Report No. 117-27, pt.1, at 41 (2021) (the
Congressional Budget Office (CBO) did not review the PWFA for
intergovernmental or private-sector mandates because ``[s]ection 4
of the Unfunded Mandates Reform Act excludes from the application of
that act any legislative provision that would establish or enforce
statutory rights prohibiting discrimination,'' and CBO ``determined
that the bill falls within that exclusion because it would extend
protections against discrimination in the workplace based on sex to
employees requesting reasonable accommodations for pregnancy,
childbirth, or related medical conditions'').
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III. Preliminary Economic Analysis of Impacts
A. The Need for Regulatory Action
The PWFA and the proposed regulation respond to the previously
limited Federal legal protections that provide accommodations for
workers affected by pregnancy, childbirth, or related medical
conditions. Although 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) provided some protections for workers affected by
pregnancy, childbirth or related medical conditions, court decisions
regarding the ability of workers affected by pregnancy, childbirth, or
related medical conditions to obtain workplace accommodations created
``unworkable'' standards that did not adequately protect pregnant
workers.\209\ Similarly, prior to the PWFA, some pregnant workers could
obtain protections under the Americans with Disabilities Act of 1990,
42 U.S.C. 12111 et seq. (ADA), but these were limited.\210\ Pregnant
workers who could not obtain accommodations risked their economic
security which had harmful effects for themselves and their
families.\211\ Furthermore, the loss of a job can affect a pregnant
worker's economic security for decades, as they lose out on
``retirement contributions . . . short term disability benefits,
seniority, pensions, social security contributions, life insurance, and
more.'' \212\Additionally, the lack of workplace accommodation can harm
the health of the worker and their pregnancy.\213\ While numerous
States have laws that provide for accommodations for pregnant workers,
the lack of a national standard before the passage of the PWFA meant
that workers' rights varied depending on the State and that millions of
workers were unprotected.\214\
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\209\ H.R. Rep. No. 117-27, pt.1, at 14-16 (2021) (describing
court rulings under Title VII and the Supreme Court's decision in
Young v. United Parcel Serv., Inc, 575 U.S. 206 (2015); see supra
Preamble of Notice of Proposed Rule Making (NPRM).
\210\ Id. at 19-21 (describing court decisions under the ADA the
failed to find coverage for workers with pregnancy-related
disabilities).
\211\ 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 (noting that ``families increasingly rely
on pregnant workers' incomes.'').
\212\ Id. at 25.
\213\ Id. at 22. (``According to the American College of
Obstetricians and Gynecologists (ACOG), providing reasonable
accommodations to pregnant workers is critical for the health of
women and their children''); id. (describing how a lack of an
accommodation led to a miscarriage for a worker).
\214\ See infra Table 1 for a calculation of the number of
workers who live in states without PWFA-analog laws.
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The PWFA at 42 U.S.C. 2000gg-3(a) provides:
Not later than 1 year after [the date of enactment of the Act,],
the Commission shall issue regulations in an accessible format in
accordance with subchapter II of chapter 5 of title 5[, United
States Code,] to carry out this chapter. Such regulations shall
provide examples of reasonable accommodations addressing known
limitations related to pregnancy, childbirth, or related medical
conditions.
Pursuant to 42 U.S.C. 2000gg-3, the EEOC is issuing this proposed rule
following the procedures codified at 5 U.S.C. 553(b).
B. Baseline
The PWFA is a new law that requires covered entities to provide
reasonable accommodations to the known limitations related to, arising
out of, or affected by pregnancy, childbirth, or related medical
conditions of qualified employees. As set out in the NPRM, the
[[Page 54751]]
PWFA seeks to fill gaps in the Federal and State legal landscape
regarding protections for workers affected by pregnancy, childbirth, or
related medical conditions.
Workers affected by pregnancy, childbirth, or related medical
conditions have certain rights under existing civil rights laws, such
as Title VII, the ADA, the Family and Medical Leave Act of 1993, 29
U.S.C. 2601 et seq. (FMLA), and various State and local laws.\215\
---------------------------------------------------------------------------
\215\ For a list of State laws, see infra Table 1. In addition,
Federal laws regarding 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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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.\216\ 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). 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 \217\ or bathroom breaks for a preschool teacher.\218\
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.\219\
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\216\ As relevant here, Title VII protects workers from
discrimination based on pregnancy, childbirth, or related medical
``with respect to . . . compensation, terms, conditions., or
privileges of employment[] because of such individual's . . . sex.''
42 U.S.C. 2000e-2(a)(1). Discrimination because of sex includes
discrimination based on ``pregnancy, childbirth, or related medical
conditions.'' 42 U.S.C. 2000e(k). 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.'' Id.
\217\ See, e.g., Portillo v. IL Creations Inc., 2019 WL 1440129,
at *5 (D.D.C. Mar. 31, 2019).
\218\ See, e.g., Wadley v. Kiddie Acad. Int'l, Inc., 2018 WL
3035785, at *4 (E.D. Pa. June 19, 2018).
\219\ 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).
---------------------------------------------------------------------------
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.\220\
---------------------------------------------------------------------------
\220\ 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), https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues [hereinafter
Enforcement Guidance on Pregnancy Discrimination].
---------------------------------------------------------------------------
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.\221\ 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.\222\ Survey
data from 2018 show that only 56 percent of employees are eligible for
FMLA leave.\223\ 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.
---------------------------------------------------------------------------
\221\ 29 U.S.C. 2612(a)(1); 29 CFR 825.120.
\222\ 29 U.S.C. 2611(2)(A), (B).
\223\ Brown et al., supra note 14.
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As set out in Table 1, thirty States currently have laws similar to
the PWFA that provide for accommodations for pregnant workers. In most
States, again as set out in Table 1, the State laws cover the same
employers that are covered by the PWFA. Workers in the remainder of the
States and Federal Government workers have the rights set out in the
Federal laws described above and, until the passage of the PWFA, did
not have the protections of a law like the PWFA.
C. Nonquantifiable Benefits
The proposed rule and the underlying statute create many important
benefits that stem from ``values that are difficult or impossible to
quantify,'' including ``equity, human dignity, [and] fairness.'' \224\
The Commission has identified five primary benefits of the proposed
rule and underlying statute. The Commission seeks comment regarding
these and any other benefits to individuals who may be affected by the
accommodations and protections set forth in the proposed rule and the
PWFA, or who may have been affected by a lack of such accommodations
and protections in the past, including qualitative or quantitative
research and anecdotal evidence.
---------------------------------------------------------------------------
\224\ 76 FR 3821, supra note 205.
---------------------------------------------------------------------------
1. Improvements in Health for Pregnant Workers and Their Babies
Congress enacted the PWFA in large part to improve maternal and
infant health outcomes. The legislative history emphasizes that the new
law was needed because ``[n]o worker should have to choose between
their health, the health of their pregnancy, and the ability to earn a
living.'' \225\ Congress further concluded that ``providing reasonable
accommodations to pregnant workers is critical to the health of women
and their children.'' \226\ The need to improve the health of health
outcome surrounding pregnancy is critical--as a recent report noted,
``women in our country are dying at a higher rate from pregnancy-
related causes than in any other developed nation.'' \227\
Additionally, ``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'' \228\ and
a recent study shows that negative health outcomes during pregnancy
disproportionately affect Black women compared to White women
regardless of wealth.\229\
---------------------------------------------------------------------------
\225\ H.R. Rep. No. 117-27, pt.1, at 11.
\226\ Id. at 11, 22.
\227\ White House, White House Blueprint for Addressing the
Maternal Health Crisis 1 (2022), https://www.whitehouse.gov/wp-content/uploads/2022/06/Maternal-Health-Blueprint.pdf.
\228\ Id. at 15.
\229\ 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), https://www.nber.org/system/files/working_papers/w30693/w30693.pdf (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).
---------------------------------------------------------------------------
Some studies have shown increased risk of miscarriage,\230\ preterm
birth,\231\
[[Page 54752]]
low birth weight, urinary tract infections, fainting, and other health
problems for pregnant workers because of workplace conditions.\232\
Several witnesses submitted personal stories to Congress connecting the
lack of accommodations at work and dangers to the health of the
employee or their pregnancy.\233\ Further, both the legislative history
of the PWFA and surveys of pregnant workers demonstrate that denial of
reasonable accommodations at work may negatively impact not only the
physical health of pregnant workers and their families, but also their
mental health by contributing to emotional stress, anxiety, and
fear.\234\
---------------------------------------------------------------------------
\230\ H.R. Rep. No. 117-27, pt.1, at 22; Am. Coll. of
Obstetricians & Gynecologists, Comm. Opinion No. 733, Employment
Considerations During Pregnancy and the Postpartum Period e119
(2018), https://www.acog.org/-/media/project/acog/acogorg/clinical/files/committee-opinion/articles/2018/04/employment-considerations-during-pregnancy-and-the-postpartum-period.pdf [hereinafter ACOG
Committee Opinion] (discussing studies that showed an increased risk
of miscarriage or stillbirth associated with night work, working
more than 40 hours a week, or extensive lifting, but noting that
``[i]t is difficult to draw definitive conclusions from these
studies.'').
\231\ H.R. Rep. No. 117-27, pt.1, at 22; ACOG Committee Opinion,
supra note 230, at e119-20 (discussing studies that found a ``slight
to modest risked increase'' of preterm birth with some work
conditions, but also noting that it is hard to know whether these
results were due to ``bias and confounding or to an actual
effect'').
\232\ H.R. Rep. No. 117-27, pt.1, at 22; see also Kaylee J.
Hackney et al., Examining the Effects of Perceived Pregnancy
Discrimination on Mother and Baby Health, 106 J. Applied Psych. 774,
781 (2021) [hereinafter Hackney Study] (describing two studies that
demonstrated that perceived pregnancy discrimination serves as a
threat to women's resources which leads to increased postpartum
depressive symptoms for mothers, decreased birth weight and
gestational age, and increased doctors' visits for their babies, via
mothers' stress); Renee Mehra et al., ``Oh Gosh, Why Go? 'Cause They
Are Going to Look At Me and Not Hire'': Intersectional Experiences
of Black Women Navigating Employment During Pregnancy and Parenting,
23:17 BMC Pregnancy & Childbirth 2 (2023), https://bmcpregnancychildbirth.biomedcentral.com/articles/10.1186/s12884-022-05268-9 [hereinafter Mehra Study] (describing studies that found
that policies that protect women in the workplace during pregnancy
and the postpartum period are important for maternal and infant
health outcomes); H. M. Salihu et al., Pregnancy In the Workplace,
62 Occupational Med. 88, 94 (2012), https://academic.oup.com/occmed/article/62/2/88/1480061?login=false [hereinafter Salihu Study]
(finding that while physically demanding jobs do not pose a
substantial risk to fetal health, ``[a] moderate temporary reduction
in job physicality may promote improved maternal and foetal
health''); ACOG Committee Opinion, supra note 230, at e117
(discussing modifications for physical work and how they could help
the health of pregnant workers).
\233\ See, e.g., Long Over Due, supra note 2 (statement from the
International Brotherhood of Teamsters) (discussing attached New
York Times article concerning workers' miscarriages at a warehouse
in Tennessee after the workers had been denied light duty); id. at
41 (statement of Dina Bakst, Co-Founder & Co-President, A Better
Balance) (describing worker denied accommodation of access to water
who ended up in the ER with severe dehydration), id. at 94
(statement of Dina Bakst, Co-Founder & Co-President, A Better
Balance) (presenting testimony about a pregnant worker denied a
lifting accommodation who suffered a miscarriage); H.R. Report No.
117-27, pt.1, at 23 (statement of Rep. Jahana Hayes) (describing how
the denial of bathroom breaks during her pregnancy ``led to further
complications with bladder issues so what started out as an
uneventful pregnancy ended up having complications as a result of
this minor accommodation not being met'').
\234\ Long Over Due, supra note 2, at 92 (statement of Dina
Bakst, Co-Founder & Co-President, A Better Balance) (describing
clients ``who have suffered profound emotional stress'' when they
were forced out of jobs due to lack of accommodations); id. at 14-15
(statement of Kimberlie Michelle Durham) (testifying that her
pregnancy was filled with anxiety and fear due to denial of
accommodation); see also Mehra Study, supra note 232, at 7-8
(describing the experience of pregnant women experiencing or
planning around pregnancy discrimination and bias and lack of
family-friendly workplace policies throughout their reproductive
years in a way that caused immense financial burden and stress); id.
at 11 (reporting that ``Black people with the capacity for pregnancy
experienced pregnancy discrimination and bias which was harmful to
their . . . mental health''); Hackney Study, supra note 232, at 780
(stating that women who perceived pregnancy discrimination at work
were more likely to suffer from postpartum depressive symptoms);
Salihu Study, supra note 232, at 95 (noting that the impact of work
culture can have profound implications for maternal psychosocial
health).
---------------------------------------------------------------------------
Moreover, workers who do not receive needed accommodations, and who
quit their jobs as a result in order to maintain a healthy pregnancy,
often lose employer-sponsored health insurance.\235\ In a letter to
Congress, a group of leading health care practitioner organizations
explained that when a pregnant worker loses health insurance, ``the
impact on both mother and baby may be long-lasting and severe. One of
the main predictors of a healthy pregnancy is early and consistent
prenatal care. Loss of employment and health benefits impact family
resources, threatening the ability to access vital health care when a
woman needs it the most.'' \236\
---------------------------------------------------------------------------
\235\ Fighting for Fairness, supra note 2 (statement of Dina
Bakst, Co-Founder & Co-President, A Better Balance) (describing
workers who lose their income and, as a result, lose their health
insurance, forcing them to delay or avoid critical pre- or post-
natal care).
\236\ Long Over Due, supra note 2, at 142 (including a letter
from professional medical associations, including the American
Academy of Family Physicians, the American Academy of Pediatrics,
the American Public Health Association, the American College of
Nurse-Midwives, the American College of Obstetricians and
Gynecologists, the Association of Women's Health, Obstetric and
Neonatal Nurses, the National Alliance to Advance Adolescent Health,
and Physicians for Reproductive Health); Fighting for Fairness,
supra note 235, at 30-31 (statement of Dina Bakst, Co-Founder and
Co-President, A Better Balance) (discussing Julia Barton, a pregnant
corrections officer who quit her job because she did not receive an
accommodation and therefore lost her health insurance).
---------------------------------------------------------------------------
Finally, by helping pregnant workers avoid health risks to
themselves and their pregnancies, the PWFA will help contribute to
improved maternal and child health and lower health care costs
nationally.
The Commission did not attempt to quantify the health benefits that
are expected to result from the PWFA and its implementing regulations,
however, because it is unaware of any data specifying precisely how
often pregnancy-related health problems may be attributed specifically
to the unavailability of work accommodations and the resulting cost of
such problems. The Commission seeks comment regarding whether the
health benefits that are expected to result from the PWFA and its
implementing regulations are quantifiable; in particular, the
Commission seeks comments regarding any existing data specifying how
often pregnancy-related health problems may be attributed to the
unavailability of work accommodations and the resulting cost of such
problems.
2. Improvements in Pregnant Workers' Economic Security
Access to reasonable accommodations at work will help workers with
limitations related to pregnancy, childbirth, or related medical
conditions to stay in the workforce, maintain their income, and provide
for themselves and their families.\237\ Based on anecdotal evidence,
unavailability of accommodations often forces workers to take unpaid
leave, quit their jobs, or seek jobs that are potentially less
lucrative, threatening their economic security.\238\ The lack of an
accommodation may also have far-reaching economic effects. As the House
Committee on Education and Labor Report for the PWFA stated,
``[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.''
\239\ Provision of reasonable accommodations may also have economic
benefits to society as a whole by keeping people attached to the labor
force and lowering the likelihood of some workers being compelled to
seek public assistance after they are forced to quit their jobs.\240\
---------------------------------------------------------------------------
\237\ The Commission is not able to monetize or quantify this
benefit because, although anecdotal evidence establishes that lack
of accommodation has led workers to quit their jobs, there are no
data on how frequently this happens.
\238\ Long Over Due, supra note 2, at 15 (statement of Kimberlie
Michelle Durham) (describing losing her job because she needed an
accommodation and explaining that her new job did not provide
overtime or benefits); id. at 150-53 (letter from the ACLU)
(describing the ACLU's legal representation of pregnant workers,
many of whom were forced to take unpaid leave or lost their jobs).
\239\ See H.R. Rep. No. 117-27, pt.1, at 21-22, 25.
\240\ See Long Over Due, supra note 2, at 15 (statement of
Kimberlie Michelle Durham) (describing when she was forced to go on
unpaid leave after she asked for an accommodation and, as a
consequence, was unable to find new employment, moved back in with
family, and was unable to find a job with benefits comparable to
those offered by her EMT job, including health insurance; her child
is on Medicaid); id. at 41 (statement of Dina Bakst, Co-Founder &
Co-President, A Better Balance) (discussing a pregnant cashier who
needed lifting restriction but was sent home and, without income,
became homeless); id. at 46 (statement of Dina Bakst) (discussing an
armored truck company employee who requested to avoid heavy lifting
at the end of pregnancy but was instead sent home; as a result, she
lost health insurance and needed to rely on public benefits such as
food stamps); id. at 70 (statement of Dina Bakst) (presenting
stories from State legislatures that describe savings to government
assistance programs stemming from the passage of PWFA-like laws in
their states).
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[[Page 54753]]
Providing needed workplace accommodations to qualified applicants
and employees with limitations related to, arising out of, or affected
by pregnancy, childbirth, or related medical conditions is another step
toward ensuring women's continued and increased participation in the
labor force.\241\ Women's increasing labor force participation was one
of the most notable labor market developments in the United States in
the second half of the 20th century, helping drive economic
growth.\242\ In 2022, 57 percent of all women participated in the labor
force.\243\ This is significantly higher than the 34 percent
participation rate in 1950.\244\ Among other things, women's
participation in the labor force is heavily impacted by pregnancy and
the demands associated with raising young children.\245\ The passage of
the Pregnancy Discrimination Act, 42 U.S.C. 2000e et seq. (PDA) in
1978, which prohibits employment discrimination based on pregnancy,
childbirth, or related medical conditions and requires that women
affected by pregnancy, childbirth, or related medical conditions be
treated the same as other individuals similar in their ability or
inability to work, increased the participation rate of pregnant women
in the labor market.\246\ As of 2021, over 66 percent of women in the
United States who gave birth in the prior year were in the labor
force,\247\ up from about 57 percent in 2006.\248\ Moreover, an
increasing number of pregnant workers are working later into their
pregnancies--over 65 percent of first-time mothers who worked during
their pregnancy worked into the last month before their child's
birth.\249\ By requiring reasonable accommodations for workers with
conditions related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions, the PWFA and this proposed
rule will further support and enhance women's labor force
participation, and, in turn, grow the U.S. economy.
---------------------------------------------------------------------------
\241\ Id. at 25 (statement of Iris Wilbur, Vice President of
Government Affairs & Public Policy, Greater Louisville, Inc., The
Metro Chamber of Commerce) (``[T]he Act will help boost our
country's workforce participation rate among women. In states like
Kentucky, which ranks 44th in the nation for female labor
participation, we know one contributor to this abysmal statistic is
a pregnant worker who is forced out or quits a job due to a lack of
reasonable workplace accommodations.'').
\242\ Women In the Labor Force: A Databook, BLS Reports, Bureau
of Lab. Stat. (Mar. 2022), https://www.bls.gov/opub/reports/womens-databook/2021/home.htm).
\243\ Employment Status of the Civilian Noninstitutional
Population by Age, Sex, and Race, U.S. Bureau of Lab. Stat. (Jan.
25, 2023), https://www.bls.gov/cps/cpsaat03.htm.
\244\ Labor Force Participation Rate--Women, Fed. Rsrv. Bank of
St. Louis (June 9, 2023), https://fred.stlouisfed.org/series/LNS11300002.
\245\ Catherine Doren, Is Two Too Many? Parity and Mothers'
Labor Force Exit, 81 J. of Marriage & Fam. 327, 341 (April 2019)
(``transition to motherhood is the primary turning point in women's
labor force participation'').
\246\ Sankar Mukhopadhyay, The Effects of the 1978 Pregnancy
Discrimination Act on Female Labor Supply, 53 Int'l Econ. Rev. 1133
(2012).
\247\ Births in the Past Year and Labor Force Participation,
supra note 23, (select ``Historical Table 5''); see also IPUMS Data,
supra note 23. (Data are available by request to registered IPUMS
USA users; please contact [email protected].
\248\ Births in the Past Year and Labor Force Participation,
supra note 23, (select ``Historical Table 5'').
\249\ Maternity Leave and Employment Patterns of First-Time
Mothers, supra note 25.
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3. Non-Discrimination and Other Intrinsic Benefits
Providing accommodations to workers with limitations related to,
arising out of, or affected by pregnancy, childbirth, or related
medical conditions also has important implications for equity, human
dignity, and fairness.
First, by allowing pregnant workers to care for their health and
the health of their pregnancies, the PWFA enhances human dignity.
Workers will be able to prioritize their health and the health of their
future children, giving their children the best possible start in life
while also protecting their economic security. The Commission seeks
comment regarding the ways in which the proposed rule and the PWFA
enhance human dignity, including qualitative or quantitative research
and anecdotal evidence addressing this benefit.
Second, the PWFA will diminish the incidence of sex discrimination
against qualified workers, enable them to reach their full potential,
reduce exclusion, and promote self-respect. The statute and the
proposed regulations provide for reasonable accommodations to workers
who would otherwise not receive them and thus could be forced to leave
their jobs or the workforce because of their pregnancy, childbirth, or
related medical conditions. Next, the statute and the proposed
regulation require a covered entity to engage an employee in an
interactive process, rather than simply assigning the employee an
accommodation, which combats stereotypes about the capabilities of
workers affected by pregnancy, childbirth, or related medical
conditions. Finally, the statute and the proposed regulations protect
workers against retaliation and coercion for using the protections of
the statute. These protections against discrimination promote human
dignity and equity by enabling qualified workers to participate or
continue to participate in the workforce.\250\
---------------------------------------------------------------------------
\250\ See Salihu Study, supra note 232, at 94 (finding that
``[w]omen who perceive employers and superiors as supportive are
more likely to return to work after childbirth. This reduces the
risk to employers regarding loss in skill and training. Similarly,
businesses that plan for and proactively approach pregnancy in the
workplace show lower rates of quitting and greater ease of shifting
workloads in the event of a pregnancy, which increases productivity
and decreases losses''); Long Over Due, supra note 2, at 15
(testimony of Kimberlie Michelle Durham) (``I wanted to work. I
loved my job); see also Salihu Study, supra note 232, at 93
(describing steps pregnant women take to combat the perception that
they are a liability in the workforce and reinforce their role as
``professionals''); Long Over Due, supra note 2, at 41 (statement of
Dina Bakst, Co-Founder & Co-President, A Better Balance) (describing
a worker who was denied an accommodation but who ``desperately
wanted to continue working''); Hackney Study, supra note 232, at 780
(explaining that managers may make incorrect assumptions about what
pregnant employees want, such as assuming a reduced workload is
beneficial, whereas pregnant workers might find this accommodation
demeaning or discriminatory, and noting the importance of managers
``hav[ing] an open dialogue with their employees about what types of
support [are] needed and desired'').
---------------------------------------------------------------------------
Third, because the PWFA applies to so many covered entities, it
will improve equity in the workforce. Currently, workers affected by
pregnancy, childbirth, or related medical conditions in higher paying
jobs and non-physical jobs are much more likely to be able to control
their schedules, take bathroom breaks, eat, drink water, or telework
when necessary.\251\ These workers may not have to request
accommodations from their employers to meet many of their pregnancy-
related needs. Workers in low-paid jobs, however, are much less likely
to be able to organize their schedules to allow them to take breaks
that may be necessary due to pregnancy, childbirth, or related medical
conditions.\252\ Nearly one-third of Black
[[Page 54754]]
and Latina workers are in low-paid jobs,\253\ the types of jobs that
are less likely to currently provide accommodations.\254\ Therefore,
the PWFA and this proposed rule will improve equity in the workforce by
ensuring that low-paid workers, including Black and Latina workers, who
may have a more difficult time securing voluntary accommodations, will
have a right to them.
---------------------------------------------------------------------------
\251\ Long Over Due, supra note 2, at 83 (statement of Rep.
Barbara Lee) (describing her own pregnancy, which required bedrest,
and contrasting her experience with the experience of workers in
less flexible jobs).
\252\ Fighting for Fairness, supra note 2235, at 108 (statement
of Fatima Goss Graves, President and CEO of the National Women's Law
Center) (``[O]ver 40% of full-time workers in low-paid jobs report
that their employers do not permit them to decide when to take
breaks, and roughly half report having very little or no control
over the scheduling of hours.'').
\253\ Id.
\254\ Id. at 204 (Letter from the National Partnership for Women
& Families) (stating that women of color and immigrants are
``disproportionately likely to work in jobs and industries where
accommodations during pregnancy are not often provided (such as
working as home health aides, food service workers, package
handlers, and cleaners''); id. at 207-08 (Letter from Physicians for
Reproductive Choice) (stating that ``the absence of legislation like
the Pregnant Workers Fairness Act disproportionately impacts
pregnant people with low-incomes and migrant workers who are more
likely to work in arduous settings. These are the same communities
that are also most at risk of experiencing increased maternal
mortality.'').
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Fourth, providing reasonable accommodations to workers who would
otherwise have been denied them yields third-party benefits that
include diminishing stereotypes regarding workers who are experiencing
pregnancy, childbirth, or related medical conditions; \255\ promoting
design, availability, and awareness of accommodations that can have
benefits for the general public, including non-pregnant workers, and
attitudinal benefits; \256\ increasing understanding and fairness in
the workplace; \257\ and creating less discriminatory work environments
that benefit workers, employers, and society.\258\
---------------------------------------------------------------------------
\255\ See Salihu Study, supra note 232, at 93 (describing
studies that have ``substantiated the pervasiveness of negative
perceptions of pregnant women'' and the common belief that they
serve as a liability in the workplace); id. at 94-95 (concluding
that the issue of pregnancy in the workplace needs to be addressed
proactively with an emphasis on combating stereotypes of pregnant
women as incompetent or uncommitted).
\256\ See Elizabeth F. Emens, Integrating Accommodation, 156 U.
Pa. L. Rev. 839, 850-59 (2008) (describing a wide range of potential
third-party benefits that may arise from workplace accommodations
for individuals with disabilities, many of which are also relevant
to accommodations for individuals protected by the PWFA).
\257\ See id. at 883-96 (describing attitudinal third-party
benefits that arise when co-workers work with individuals receiving
accommodations in the workplace under the ADA, many of which are
relevant to accommodations for individuals protected by the PWFA).
\258\ See Long Over Due, supra note 2, at 3 (statement of Rep.
Suzanne Bonamici) (describing the PWFA as ``an opportunity for
Congress to finally fulfill the promise of the Pregnancy
Discrimination Act and take an important step towards workplace
gender equity,'' among other benefits).
---------------------------------------------------------------------------
4. Clarity in Enforcement and Efficiencies in Litigation
Congress, in describing the goals of the PWFA, also focused on the
clarity that the PWFA would bring to the question of when employers
must provide accommodations for limitations related to pregnancy,
childbirth, or related medical conditions: ``The PWFA eliminates a lack
of clarity in the current legal framework that has frustrated pregnant
workers' legal rights to reasonable accommodations while providing
clear guidance to both workers and employers.'' \259\ By creating a
national standard, the PWFA also may increase compliance with State
laws requiring accommodations for pregnant workers,\260\ as coming into
compliance with the PWFA may increase employers' knowledge about these
laws in general.
---------------------------------------------------------------------------
\259\ H.R. Rep. No. 117-27, pt.1, at 11; id. at 31 (``By
guaranteeing pregnant workers the right to reasonable accommodations
in the workplace, the PWFA could also decrease employers' legal
uncertainty.''); see also Long Over Due, supra note 2, at 24
(statement of Iris Wilbur, Vice President of Government Affairs &
Public Policy, Greater Louisville, Inc., Metro Chamber of Commerce)
(``For our members, uncertainty means dollars. A consistent and
predictable legal landscape means a business-friendly environment.
Before Kentucky's law was enacted this summer, our employers were
forced to navigate a complex web of Federal laws and court decisions
to figure out their obligations. And now this guidance is especially
beneficial for the smaller companies we represent who cannot afford
expensive legal advisors.'').
\260\ See infra Table 1 for a list of these laws.
---------------------------------------------------------------------------
Additionally, by clarifying the rules regarding accommodations for
pregnant workers, the PWFA and the proposed rule will decrease the need
for litigation regarding accommodations under the PWFA. To the extent
that litigation remains unavoidable in certain circumstances, the PWFA
and the proposed rule are expected to eliminate the need to litigate
whether the condition in question is a ``disability'' under the ADA,
and to limit discovery and litigation costs that arise under Title VII
regarding determining if there are valid comparators, thus streamlining
the issues requiring judicial attention.\261\
---------------------------------------------------------------------------
\261\ See H.R. Report No. 117-27, pt.1, at 14-17 (describing the
need to find comparators under Title VII and the difficulties it has
caused pregnant workers seeking accommodations); id. at 17-21
(describing the protections available for pregnant workers under the
ADA and the fact that frequently even pregnancies with severe
complications are found by courts not to be ``disabilities'').
---------------------------------------------------------------------------
5. Benefits for Covered Entities
Providing accommodations needed due to pregnancy, childbirth, or
related medical conditions also are likely to provide benefits to
covered entities. By providing accommodations to workers affected by
pregnancy, childbirth, or related medical conditions and retaining them
as employees, employers will save money from having to replace and
train a new employee. According to one study, 85 percent of employers
that provided accommodations to individuals with disabilities reported
that doing so enabled them to retain a valued employee; 53 percent
reported an increase in that employee's productivity; 46 percent
reported elimination of costs associated with training a new employee;
48 percent reported an increase in that employee's attendance; 33
percent noted that providing the accommodation increased diversity in
the company; and 23 percent reported a decrease in workers'
compensation or other costs. Employers also noted several indirect
benefits: 30 percent noted an increase in company morale, and 21
percent noted an increase in overall company productivity.\262\
---------------------------------------------------------------------------
\262\ Costs and Benefits of Accommodation, supra note 33.
---------------------------------------------------------------------------
D. Costs
1. Covered Entities and Existing Legal Landscape
Entities covered by the PWFA and the proposed regulation include
all employers covered by Title VII and the Government Employee Rights
Act of 1991, 42 U.S.C. 2000e-16b, 2000e-16c (GERA), including private
and public sector employers with at least 15 employees, Federal
agencies, employment agencies, and labor organizations.\263\
---------------------------------------------------------------------------
\263\ See 42 U.S.C. 2000gg(2)(A). The PWFA also applies to
employers covered by the Congressional Accountability Act (CAA) of
1995 (42 U.S.C. 2000gg(2)(B)(ii)). The proposed regulation does not
apply to employers covered under CAA, as the Commission does not
have the authority to enforce the PWFA with respect to employees
covered by the CAA
---------------------------------------------------------------------------
In addition to the legal protections described earlier in the
preamble pertaining to Title VII, the ADA, and the FMLA, there are
three other important legal considerations that impact the costs of
accommodations under the PWFA and this regulation.
First, 30 States and five localities have laws substantially
similar to the PWFA, requiring covered employers to provide reasonable
accommodations to pregnant workers.\264\ As a result, this proposed
rule will impose minimal, if any, additional costs on the covered
entities in these States and localities.\265\
---------------------------------------------------------------------------
\264\ See infra Table 1; see also Employment Protections for
Workers Who Are Pregnant or Nursing, supra note 5.
\265\ The PWFA analogs in Alaska, North Carolina and Texas only
cover certain public employers. The laws in Louisiana and Minnesota
apply to employers larger than the PWFA threshold of 15 employees
(25 or more employees in Louisiana; 21 or more employees in
Minnesota). As explained below, the analysis takes these differences
into account.
---------------------------------------------------------------------------
[[Page 54755]]
Second, when it enacted the PWFA, Congress also enacted the
Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP
Act), which requires employers who are covered by the Fair Labor
Standards Act, 29 U.S.C. 201 et seq., (FLSA) to provide reasonable
break time for an employee to express breast milk for their nursing
child each time such employee has need to express milk for one year
after the child's birth. The PUMP Act also requires employers to
provide a place to pump at work, other than a bathroom, that is
shielded from view and free from intrusion from coworkers and the
public.\266\ As a result, the Commission anticipates that most workers
will not need to seek reasonable accommodations regarding a time and
place to pump at work under the PWFA because they will already be
entitled to these under the PUMP Act.
---------------------------------------------------------------------------
\266\ U.S. Dep't of Lab., FLSA Protections to Pump at Work,
https://www.dol.gov/agencies/whd/pump-at-work (last visited Apr. 2,
2023).
---------------------------------------------------------------------------
Third, the Federal Government provides 12 weeks of paid parental
leave to eligible Federal employees upon the birth of a new child.\267\
As a result, these Federal workers may make fewer requests for leave as
a reasonable accommodation under the PWFA as they are already
guaranteed a certain amount of paid leave.
---------------------------------------------------------------------------
\267\ Federal Employee Paid Leave Act, Public Law 116-92 (2019).
---------------------------------------------------------------------------
2. Estimate of the Number of Reasonable Accommodations That Will Be
Provided as a Result of the Proposed Rule and Underlying Statute
As set out in Tables 1 and 2 and explained in detail infra, the
proposed rule and underlying statute cover approximately 117 million
employees of private establishments with 15 or more employees, 18.8
million State and local government employees, and 2.3 million Federal
employees. Only a small percentage of these employees are expected to
seek and be entitled to accommodations as a result of the proposed rule
and underlying statute.
Approximately 52 percent of private sector enterprises with 15 or
more employees in the United States (1.4 million establishments),
employing about 61.2 million workers (accounting for 52 percent of
employment in those States) are currently subject to State or local
laws that are substantially similar to the PWFA. The enactment of the
PWFA and promulgation of the proposed rule, therefore, should not
result in additional accommodation-related costs for these employers.
Subtracting 61.2 million workers from the total number of covered
workers employed by private sector enterprises (117 million) yields a
total of approximately 55.5 million employees of private sector
establishments who will be covered by the proposed rule and underlying
statute, and who are not also covered by State or local laws that are
substantially similar to the PWFA. Tables 1 and 2 display each State's
share of the total national number of private sector establishments
that have 15 or more employees and thus will be subject to the PWFA,
and the percentage of workers in the State employed by such
establishments. States with laws substantially similar to the PWFA are
in Table 1; States without such a law are in Table 2.
---------------------------------------------------------------------------
\268\ The Number of Firms and Establishments, Employment, and
Annual Payroll by State, Industry, and Enterprise Employment Size:
2020, Stats. of U.S. Bus. Ann. Datasets by Establishment Indus.
(2020),https://www2.census.gov/programs-surveys/susb/tables/2020/us_state_naics_detailedsizes_2020.xlsx [hereinafter Firms and
Establishments Data by State]. Percentages in the Table reflect
filtering by employer size and summing by state.
\269\ This number is limited to enterprises with at least 15
employees.
\270\ This denotes the minimum number of employees that an
employer must have to be covered by the State law.
\271\ These numbers only account for enterprises with at least
25 employees because Louisiana's pregnancy accommodations law
applies to employers with 25 or more employees. See La. Rev. Stat.
Ann. sec. 23:341 (2021).
\272\ These numbers only account for enterprises with at least
25 employees because Minnesota's pregnancy accommodation law applies
to employers with 21 or more employees. Minn. Stat. sec. 181.940,
181.9414, 181.9436 (2014). Data on enterprises with 21 to 24
employees are not available.
\273\ Pennsylvania does not have a state-wide pregnancy
accommodation law, but Philadelphia does. See Phila. Code sec. 9-
1128 (2014). Philadelphia accounts for approximately 9 percent of
Pennsylvania establishments and approximately 12 percent of
individuals employed in Pennsylvania. See The Number of Firms and
Establishments, Employment, and Annual Payroll by Congressional
District, Industry, and Enterprise Employment Size: 2019, Statistics
of U.S. Bus. Ann. Datasets by Establishment Indus. (2019), https://www2.census.gov/programs-surveys/susb/tables/2019/cd_naicssector_2019.xlsx [hereinafter Firms and Establishments Data
by Congressional District]. The calculation is based on the total
number of establishments and total employment in Pennsylvania and in
Philadelphia County and the shares of employment in each.
\274\ This total does not include Alaska, North Carolina, and
Texas, where the pregnancy accommodation laws only apply to certain
public employees.
Table 1--Share of Employers With 15 or More Employees in States Already Subject to Local Pregnancy Accommodation
Laws Similar to the PWFA \268\
----------------------------------------------------------------------------------------------------------------
Share in U.S. Total \269\
State Statute Threshold \270\ --------------------------------
Establishments Employment
----------------------------------------------------------------------------------------------------------------
California...................... Cal. Gov't Code 5........................ 10.6% 11.6%
sec. 12945(a)(3).
Colorado........................ Colo. Rev. Stat. 5........................ 1.9% 1.8%
sec. 24-34-402.3.
Connecticut..................... Conn. Gen. Stat. 3........................ 1.2% 1.2%
sec. 46a-
60(b)(7)(A)-(K).
Delaware........................ Del. Code Ann. 4........................ 0.4% 0.3%
tit. 19, sec.
711(a)(3)(b)-(f).
District of Columbia............ DC Code sec. 32- 1........................ 0.4% 0.4%
1231.02.
Hawaii.......................... Haw. Code R. sec. 1........................ 0.4% 0.4%
12-46-107..
Illinois........................ 775 Ill. Comp. 1........................ 3.9% 4.2%
Stat. 5/2-102(I)-
(J).
Kentucky........................ Ky. Rev. Stat. 15....................... 1.4% 1.3%
sec. 344.040.
Louisiana \271\................. La. Rev. Stat. 25....................... 1.3% 1.2%
sec. 23:341-342.
Maine........................... Me. Rev. Stat. 1........................ 0.5% 0.4%
tit. 5, sec. 4572-
A.
Maryland........................ Md. Code, State 15....................... 1.9% 1.8%
Gov't sec. 20-609.
Massachusetts................... Mass. Gen. Laws 6........................ 2.3% 2.6%
ch. 151B, sec.
4(1E)(a).
Minnesota \272\................. Minn. Stat. sec. 21....................... 1.7% 2.0%
181.939.
Nebraska........................ Neb. Rev. Stat. 15....................... 0.7% 0.6%
sec. 48-1102(11),
1102(18).
Nevada.......................... Nev. Rev. Stat. 15....................... 0.9% 1.0%
sec. 613.438.
New Jersey...................... N.J. Stat. Ann. 1........................ 2.6% 2.8%
sec. 10:5-3.1.
New Mexico...................... N.M. Code R. sec. 4........................ 0.6% 0.5%
9.1.1.7(HH)(2).
New York........................ N.Y. Exec. Law 4........................ 5.2% 6.3%
sec. 292(21-e)
and (21-f),
296(3).
[[Page 54756]]
North Dakota.................... N.D. Cent. Code 1........................ 0.3% 0.3%
Ann. sec. 14-02.4-
03.
Oregon.......................... Or. Rev. Stat. 6........................ 1.4% 1.2%
sec. 659A.029.
Pennsylvania \273\.............. Phila. Code sec. 9- 1 (Philadelphia)......... 0.4% 0.5%
1128.
Rhode Island.................... R.I. Gen. Laws 4........................ 0.3% 0.3%
sec. 28-5-
7.4(a)(1)-(3).
South Carolina.................. S.C. Code Ann. 15....................... 1.6% 1.5%
sec. 1-13-
80(A)(4).
Tennessee....................... Tenn. Code. Ann. 15....................... 2.2% 2.1%
sec. 50-10-103.
Utah............................ Utah Code sec. 34A- 15....................... 0.9% 1.1%
5-106(1)(g).
Vermont......................... Vt. Stat. Ann. 1........................ 0.2% 0.2%
tit. 21, sec.
495k(a)(1).
Virginia........................ Va. Code sec. 2.2- 5........................ 2.8% 2.6%
3901.
Washington...................... Wash. Rev. Code 15....................... 2.3% 2.2%
sec. 43.10.005(2).
West Virginia................... W. Va. Code sec. 5- 12....................... 0.6% 0.4%
11B-2.
--------------------------------
Total \274\................. .................. ......................... 51% 52%
--------------------------------
Total (in millions)..... .................. ......................... 1.4 61.2
----------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
\275\ Firms and Establishments Data, supra note 268. Percentages
in the Table reflect filtering by size and summing by state.
\276\ This number is limited to enterprises with at least 15
employees.
\277\ Alaska's statute, codified at Alaska Stat. sec. 39.20.520
(1992), covers public employers only.
\278\ These numbers only include enterprises with 15-24
employees because Louisiana's pregnancy accommodations law applies
to employers with 25 or more employees. La. Rev. Stat. Ann. sec.
23:341 (2021).
\279\ These numbers only include enterprises with 15-24
employees because Minnesota's pregnancy accommodation law applies to
employers with 21 or more employees. Minn. Stat. sec. 181.940,
181.9414, 181.9436 (2014). Data on enterprises with 15-20 employees
are not available.
\280\ N.C. E.O. No. 82 (2018) covers public employers only.
\281\ Pennsylvania does not have a state-wide pregnancy
accommodation law, but Philadelphia does. See Phila. Code sec. 9-
1128 (2014). Philadelphia accounts for approximately 9 percent of
Pennsylvania establishments and approximately 12 percent of
individuals employed in Pennsylvania. See Firms and Establishments
Data by Congressional District, supra note 273 . The calculation is
based on the total number of establishments and total employment in
Pennsylvania and in Philadelphia County and the shares of employment
in each.
\282\ The Texas statute, codified at Tex. Loc. Gov't Code
sec.180.004 (2001), covers local public employers only.
Table 2--Share of Total U.S. Employer Establishments With 15 or More
Employees in States That Will Be Impacted by PWFA 275
------------------------------------------------------------------------
Share in U.S. Total \276\
State -------------------------------
Establishments Employment
------------------------------------------------------------------------
Alabama................................. 1.5% 1.3%
Alaska \277\............................ 0.2% 0.2%
Arizona................................. 2.0% 2.0%
Arkansas................................ 0.9% 0.8%
Florida................................. 6.0% 6.8%
Georgia................................. 3.1% 3.1%
Idaho................................... 0.6% 0.4%
Indiana................................. 2.2% 2.1%
Iowa.................................... 1.1% 1.0%
Kansas.................................. 1.0% 0.9%
Louisiana \278\......................... 0.2% 0.1%
Michigan................................ 2.9% 3.0%
Minnesota \279\......................... 0.3% 0.1%
Mississippi............................. 0.9% 0.7%
Missouri................................ 2.1% 1.9%
Montana................................. 0.4% 0.2%
New Hampshire........................... 0.5% 0.5%
North Carolina \280\.................... 3.2% 3.0%
Ohio.................................... 3.8% 3.8%
Oklahoma................................ 1.2% 1.0%
Pennsylvania \281\...................... 3.8% 3.7%
South Dakota............................ 0.3% 0.3%
Texas \282\............................. 8.5% 8.5%
Wisconsin............................... 2.0% 2.0%
Wyoming................................. 0.2% 0.1%
-------------------------------
Total............................... 49% 48%
-------------------------------
Total (in millions)............. 1.3 55.5
------------------------------------------------------------------------
[[Page 54757]]
Similarly, approximately 11.5 million State and local government
employees are covered by laws that are substantially similar to the
PWFA.\283\ Subtracting this number from the total number of covered
State and local government employees (18.8 million) yields a total of
7.3 million State and local government employees who will be covered by
the proposed rule and underlying statute, and who are not already
covered by State or local laws substantially similar to the PWFA.
---------------------------------------------------------------------------
\283\ U.S. Census Bureau, 2021 ASPEP Datasets & Tables (2021),
https://www.census.gov/data/datasets/2021/econ/apes/annual-apes.html
[hereinafter ASPEP Datasets]. The calculation is based on data from
the ``State Government Employment & Payroll Data'' and the ``Local
Government Employment & Payroll'' files, ``Government Function''
column.
\284\ See IPUMS Data, supra note 23. Data are available by
request to registered IPUMS-USA users; please contact [email protected].
\285\ Id.
\286\ Id.
---------------------------------------------------------------------------
Finally, there are 2.3 million Federal workers. The Federal
Government does not currently require accommodations for pregnant
workers; thus, the PWFA provides a new right for these workers.
---------------------------------------------------------------------------
\287\ Id.
\288\ ASPEP Datasets, supra note 283. The calculation is based
on data as described in note 61.
---------------------------------------------------------------------------
Again, however, not all employees who are now covered by the PWFA
will seek and be entitled to accommodations as a result of the proposed
rule and underlying statute; only a small percentage will become
pregnant and need accommodations in a given year. In 2021, women of
reproductive age (aged 16-50 years) comprised approximately 33 percent
of U.S. workers.\284\ Of these, approximately 4.7 percent gave birth to
at least one child the previous year.\285\ Applying these percentages
\286\ to the numbers above yields totals (rounded to the nearest
10,000) of, in a given year, 850,000 private sector employees
(55,500,000 x 0.33 x 0.047), 110,000 State and local government
employees (7,300,000 x 0.33 x 0.047), and 40,000 Federal employees
(2,310,000 x 0.33 x 0.047) who are both newly eligible for reasonable
accommodations under the proposed rule and underlying statute, and who
may be expected to become pregnant in a given year. Tables 3, 4, and 5
display these calculations.
---------------------------------------------------------------------------
\289\ This number includes 12 percent of State and local
government employment in Pennsylvania to account for Philadelphia's
PWFA-type law, excludes local government employment in North
Carolina because the existing law only applies to State employees,
and excludes State government employment in Texas because the
existing law only applies to local governments.
\290\ This number includes State and local government employment
in Pennsylvania not accounted for by Philadelphia, includes local
government employment in North Carolina because the existing law
only applies to State employees, and includes State government
employment in Texas because the existing law only applies to local
governments.
\291\ Full-Time and Part-Time Employees by Industry, U.S. Bureau
of Econ. Analysis, https://apps.bea.gov/iTable/?reqid=19&step=2&isuri=1&1921=survey#eyJhcHBpZCI6MTksInN0ZXBzIjpbMSwyLDNdLCJkYXRhIjpbWyJDYXRlZ29yaWVzIiwiU3VydmV5Il0sWyJOSVBBX1RhYmxlX0xpc3QiLCIxOTMiXV19 (last visited June 12, 2023).
Table 3--Computation of Expected Number of Pregnant Women Eligible for
PWFA Accommodations at Private Employers \287\
------------------------------------------------------------------------
------------------------------------------------------------------------
Total employment in establishments covered 117 million.
under PWFA (i.e., those with at least 15
employees).
Total employment in establishments covered 61.2 million.
under PWFA, with existing PWFA-type
accommodations under State/local laws
(from Table 1).
Total employment in establishments covered 55.5 million.
under PWFA, without existing PWFA-type
accommodations under State/local laws
(from Table 2).
------------------------------------------------------------------------
Share of 16-50 years old women......... 33%.
------------------------------------------------------------------------
Total number of women employees newly 18.1 million.
eligible for accommodations under PWFA
(33% of 55.5 million).
------------------------------------------------------------------------
Expected share of women employees to be 4.7%.
pregnant in a year.
------------------------------------------------------------------------
Expected number of pregnant employees newly 850,000.
eligible for accommodations under PWFA
(4.7% of 18.1 million).
------------------------------------------------------------------------
Table 4--Computation of Expected Number of Pregnant Women Eligible for
PWFA Accommodations in State and Local Government Employment \288\
------------------------------------------------------------------------
------------------------------------------------------------------------
Total State and local government employment 18.8 million.
Total State and local government employment 11.5 million.
in States with existing PWFA-type
accommodations under State/local laws
\289\.
Total State and local government employment 7.3 million.
in States without existing PWFA-type
accommodations under State/local laws
\290\.
------------------------------------------------------------------------
Share of 16-50 years old women......... 33%.
------------------------------------------------------------------------
Total number of State and local government 2.4 million.
women employees newly eligible for
accommodations under PWFA (33% of 7.3
million).
Expected share of women employees to be 4.7%.
pregnant in a year.
------------------------------------------------------------------------
Expected number of pregnant State and local 110,000.
government employees newly eligible for
accommodations under PWFA (4.7% of 2.4
million).
------------------------------------------------------------------------
Table 5--Computation of Expected Number of Pregnant Women Eligible for
PWFA Accommodations in Federal Government Employment
------------------------------------------------------------------------
------------------------------------------------------------------------
Total Federal Government civilian 2.31 million.
employment \291\.
------------------------------------------------------------------------
Share of 16-50 years old women......... 33%.
------------------------------------------------------------------------
[[Page 54758]]
Total number of women Federal Government 0.8 million.
employees newly eligible for
accommodations under PWFA.
------------------------------------------------------------------------
Expected share of women employees to be 4.7%.
pregnant in a year.
------------------------------------------------------------------------
Expected number of pregnant Federal 40,000.
Government employees newly eligible for
accommodations under PWFA.
------------------------------------------------------------------------
The sum of the expected number of pregnant women eligible for PWFA
accommodations in the private sector (850,000), State and local
government (110,000), and Federal Government (40,000) is 1,000,000.
Further, not all individuals who become pregnant will need a
reasonable accommodation. Because there is very little research on the
proportion of pregnant workers who need workplace accommodations, the
Commission has generated a ranged estimate. The Commission seeks
comment regarding any existing data quantifying the proportion of
pregnant workers who need workplace accommodations.
Survey research has shown that 71 percent of pregnant workers
experience some type of pregnancy-related limitation that might require
an accommodation.\292\ The Commission thus adopts 71 percent as its
upper-bound estimate of the percentage of pregnant workers needing
accommodation. Applying this percentage yields upper-bound estimates of
600,000 private sector employees (71 percent of 850,000), 80,000 State
and local government employees (71 percent of 110,000), and 30,000
Federal sector employees (71 percent of 40,000), in total 710,000, who
will need, and be newly entitled to, reasonable accommodations under
the proposed rule and underlying statute in a given year.
---------------------------------------------------------------------------
\292\ Listening to Mothers III, supra note 34.
---------------------------------------------------------------------------
Based on this research,\293\ the Commission has calculated that
approximately 23 percent of pregnant workers have faced a pregnancy-
related limitation but did not receive a workplace accommodation,
either because they did not ask for one or because the employer did not
address the need when the issue was raised. The Commission utilized the
survey research to calculate the number of workers who needed a
particular accommodation (for example, 71 percent of 598 respondents,
or 425 respondents, needed more frequent breaks); the number of workers
who asked employers to address the need (58 percent of 425 respondents,
or 246 respondents); and the number of those workers whose employers
did not attempt to address the need (5 percent of 246 respondents, or
12 respondents). Additionally, the Commission calculated the number of
workers who needed an accommodation but did not ask their employers to
address the need (42 percent of 425 respondents, or 179 respondents)
and used these two numbers to identify the percentage of workers who
faced a limitation and did not previously receive an accommodation but
will have a right to an accommodation under the PWFA (12+179/598=32
percent). The Commission calculated this percentage for the four
accommodations identified in the survey data and determined an average
of those four percentages.
---------------------------------------------------------------------------
\293\ See id. at 36; see also infra Table 6.
\294\ Id.
\295\ Id.
\296\ Id.
Table 6--Share of Pregnant Women Currently Without Pregnancy-Related Employer Support \294\
----------------------------------------------------------------------------------------------------------------
Of those who faced % Of pregnant
Of those who a limitation, % women who faced a
% Faced with faced a that asked the limitation, didn't
pregnancy-related limitation, % employer to receive an
Employer support during pregnancy limitation with that didn't ask address need but accommodation
paid job \295\ employer to whose employer previously, but
address need didn't attempt to will have a right
\296\ address concern to it under PWFA
----------------------------------------------------------------------------------------------------------------
To take more frequent breaks, such 71 42 3 32
as extra bathroom breaks.........
A change in schedule or more time 61 26 7 20
off, for example, to see prenatal
care providers...................
A change in duties, such as less 53 37 6 23
lifting or more sitting..........
Some other type of workplace 40 38 8 18
adjustment due to a pregnancy-
related condition................
-----------------------------------------------------------------------------
Average....................... ................. ................. .................. 23
----------------------------------------------------------------------------------------------------------------
Accordingly, these data suggest that the proposed rule and
underlying statute will result in a new obligation on employers in only
23 percent of instances in which a worker requires reasonable
accommodations related to pregnancy, childbirth, or related medical
conditions. The Commission thus adopts 23 percent as its lower-bound
estimate of the percentage of pregnant workers who will need, and be
newly entitled to, a reasonable accommodation under the proposed rule
and underlying statute. Applying this percentage yields lower-bound
estimates of approximately 200,000 private sector employees (23 percent
of 850,000), 30,000 State and local government employees (23 percent of
110,000), and 10,000 Federal sector employees (23 percent of 40,000),
in total 240,000, who will need, and be newly entitled to, reasonable
accommodations under the proposed rule and underlying statute in a
given year.
3. Cost of Accommodation
Accommodations that allow pregnant workers to continue to perform
their job
[[Page 54759]]
duties, thereby allowing them to receive continued pay and benefits,
include permission to take additional rest or bathroom breaks, to use a
stool or chair, to change duties in order to avoid strenuous physical
activities, and to change schedules to attend prenatal
appointments.\297\ Some of these accommodations, especially additional
rest or bathroom breaks and provision of a stool or chair, are expected
to impose minimal or no additional costs on the employer. Certain other
types of accommodations, such as allowing the employee to avoid heavy
lifting or exposure to certain types of chemicals, may be easy to
provide in some jobs but more difficult to provide in others,
necessitating temporary restructuring of responsibilities or transfer
to a different position.
---------------------------------------------------------------------------
\297\ Id.; see also Long Over Due, supra note 2, at 79
(statement of Dina Bakst, Co-Founder & Co-President, A Better
Balance) (describing potential accommodations).
---------------------------------------------------------------------------
The Commission was unable to find any data on the average cost of
reasonable accommodations related specifically to pregnancy,
childbirth, or related medical conditions. The Commission has therefore
relied on the available data on the cost of accommodations for
individuals with disabilities for purposes of this analysis.
A survey conducted by the Job Accommodation Network (JAN) indicates
that most workplace accommodations for individuals with disabilities
are low-cost.\298\ Of the employers participating in this survey
between 2019 and 2022, 49.4 percent reported that they provided an
accommodation needed because of a disability that did not cost anything
to implement. The Commission believes that the percentage of no-cost
accommodation is likely to be higher for accommodations related
specifically to pregnancy, childbirth, or related medical conditions,
because many will be simple and no-cost like access to water, stools,
or more frequent bathroom breaks, and because the vast majority will be
temporary. Nevertheless, because the Commission is unable to locate any
data on the percentage of accommodations needed because of pregnancy-
related conditions that have no cost, the Commission conservatively
assumes for purposes of this analysis that the percentages are the
same.
---------------------------------------------------------------------------
\298\ Costs and Benefits of Accommodation, supra note 33.
---------------------------------------------------------------------------
The same research showed that another 43.3 percent of employers
provided an accommodation that involved a one-time cost; the median
one-time cost of providing such an accommodation was $300. Only 7.2
percent of employers reported that they provided an accommodation that
resulted in ongoing annual costs. Because pregnancy is a temporary
condition, the ongoing costs incurred by 7.2 percent of employers is
unlikely to be applicable to pregnancy-related accommodations, and the
Commission adopts $300 as the median one-time cost for employers that
incurred a cost (50.6 percent of employers). Again, although the
Commission believes that the average cost is likely lower for
accommodations needed specifically for pregnancy, childbirth, or
related medical conditions, it will use the data for the purposes of
this analysis.
Because non-zero cost accommodations generally involve durable
goods such as additional stools, infrastructure for telework, and
machines to help with lifting, and because these goods generally have a
useful life of five years, the Commission will assume that the annual
cost of providing these accommodations is approximately $60 per year
per accommodation.\299\ The Commission seeks comment on whether the
annual cost of providing non-zero cost accommodations should be
calculated based on durable goods with a useful life of five years.
---------------------------------------------------------------------------
\299\ The Commission made a similar assumption of a five-year
life for accommodations in its cost analysis of the amendments to
the ADA. 76 FR 16977, 16994 (March 25, 2011).
---------------------------------------------------------------------------
Using these cost estimates, and applying them to the upper- and
lower-bound estimates for the number of additional accommodations that
will likely be required by the rule and underlying statute, the
estimated annual costs for private employers is between $6 million and
$18 million; the estimated annual costs for State and local governments
is between $0.8 million and $2.4 million, and the estimated annual
costs for the Federal Government is between $0.3 million and $0.8
million. See Tables 7, 8, and 9.
Table 7--Estimated Reasonable Accommodation Costs to Private Employers
With More Than 15 Employees
------------------------------------------------------------------------
Cost of accommodation Lower bound (23%) Upper bound (71%)
------------------------------------------------------------------------
Number of women needing 200,000........... 600,000.
accommodation.
Number of non-zero cost 100,000........... 300,000.
accommodations (50.6%).
Annual cost of accommodation.... $6 million........ $18 million.
------------------------------------------------------------------------
Table 8--Estimated Reasonable Accommodation Costs to State and Local
Government Employers
------------------------------------------------------------------------
Cost of accommodation Lower Bound (23%) Upper Bound (71%)
------------------------------------------------------------------------
Number of women needing 30,000............ 80,000.
accommodation.
Number of non-zero cost 11,000............ 40,000.
accommodations (50.6%).
Annual cost of accommodation.... 800,000........... $2.4 million.
------------------------------------------------------------------------
Table 9--Estimated Reasonable Accommodation Costs to the Federal Government
----------------------------------------------------------------------------------------------------------------
Cost of accommodation Lower Bound (23%) Upper Bound (71%)
----------------------------------------------------------------------------------------------------------------
Number of women needing accommodation.......... 10,000........................... 30,000.
Number of non-zero cost accommodations (50.6%). 0.004 million.................... 13,000.
Annual cost of accommodation................... $300,000......................... $800,000.
----------------------------------------------------------------------------------------------------------------
[[Page 54760]]
Thus, the overall economic impact on the U.S. economy of the
proposed rule and underlying statute is estimated to be between $7.1
million and $21.2 million annually.
The costs in Tables 7, 8, and 9 likely overestimate the costs to
covered entities in at least six respects:
The estimates are based on costs of accommodations for
individuals with disabilities generally, not only those related to
pregnancy, among the JAN survey respondents. The Commission believes
that the average cost of accommodations related to pregnancy,
childbirth, or related medical conditions is less than the average cost
of disability-related accommodations because many of the reasonable
accommodations requested under the PWFA will be simple and inexpensive
to provide, and the vast majority will be temporary. The Commission
seeks comment regarding any existing data quantifying the average cost
of accommodations related to pregnancy, childbirth, or related medical
conditions.
The sample obtained in the JAN study may not be
representative of all employers, because employers who consult with JAN
are likely to be facing more difficult and costly accommodation issues
than employers overall.\300\
---------------------------------------------------------------------------
\300\ The Job Accommodation Network (JAN) provides free
assistance regarding workplace accommodation issues. See generally
Job Accommodation Network, https://askjan.org/ (last visited Apr. 2,
2023).
---------------------------------------------------------------------------
The estimate did not account for the fact that some
workers who will be entitled to reasonable accommodations under the
PWFA and the proposed rule are independently entitled to accommodations
under the ADA or Title VII, to break time and a private place to pump
at work under the PUMP Act, and, in some cases, leave under the FMLA or
the Federal Employees Paid Leave Act.\301\
---------------------------------------------------------------------------
\301\ Brown et al., supra note 14, at 6 (finding that about 56
percent of U.S. employees were eligible for FMLA in 2018, and 25
percent of the FMLA leaves taken in the prior 12 months accounted
for the arrival of a new child).
---------------------------------------------------------------------------
The estimate does not account for the fact that some
employers voluntarily provide accommodations to workers affected by
pregnancy, childbirth, or related medical conditions and may not incur
new costs.
The Commission did not offset the costs associated with
providing accommodations with the potential costs associated with not
providing them. In some instances where an individual is denied an
accommodation, the individual separates from the employer because they
quit, or they are forced to leave. In these instances, the employer
must replace the employee. Replacement costs for an employee vary based
on salary; estimates range from $2,000-$7,000,\302\ with $4,000 being a
common average.\303\ Thus, in these situations, the accommodations will
save the employer more than the accommodation will cost.
---------------------------------------------------------------------------
\302\ Arindrajit Dube et al., Employee Replacement Costs, 2
IRLE, Univ. of Cal. Berkeley, Working Paper No. 201-10 (2010),
https://irle.berkeley.edu/files/2010/Employee-Replacement-Costs.pdf.
\303\ Id.
---------------------------------------------------------------------------
This analysis does not account for the fact that not all
workers who seek accommodations will meet the definition of
``qualified,'' and an employer may decline to provide a reasonable
accommodation if doing so creates an undue hardship.
The Commission did not include costs related to processing requests
for accommodation in its estimate because it expects these costs to be
extremely low. Employers that are covered by State or local laws
substantially similar to the PWFA already have these procedures in
place. The Commission assumes that employers not covered by such State
or local laws, and the Federal Government, will adapt existing
procedures for providing accommodations under Title VII and the ADA and
for providing leave under the FMLA.
4. One-Time Administrative Costs for Covered Entities
Administrative costs, which include rule familiarization, posting
new equal employment opportunity posters, and updating EEO policies and
handbooks, represent additional, one-time direct costs to covered
entities.
It is estimated that in States that do not already have laws
substantially similar to the PWFA, compliance activities for a covered
entity would take an average of 90 minutes by an Equal Opportunity
Officer who is paid a fully loaded wage of $113.51 per hour \304\
($68.57 for a State or local government worker).\305\ In States with
already existing laws similar to the PWFA, an Equal Opportunity Officer
will take an average of 30 minutes for compliance activities. For the
Federal Government, which does not have an existing PWFA, it is
estimated that compliance activities would take an average of ninety
minutes by an Equal Opportunity Officer at a GS 14-5 salary.\306\ These
calculations are displayed in Table 10. The Commission seeks comment on
whether 90 minutes accurately captures the amount of time compliance
activities will take for a covered entity in States that do not already
have laws substantially similar to the PWFA and for the Federal
Government, and whether 30 minutes accurately captures the amount of
time compliance activities will take for a covered entity in States
that have existing laws similar to the PWFA.
---------------------------------------------------------------------------
\304\ The Commission anticipates that the bulk of the workload
under this proposed rule would be performed by employees in
occupations similar to those associated with the Standard
Occupational Classification (SOC) code of SOC 11-3121 (Human
Resources Managers). According to the U.S. Bureau of Labor
Statistics, the mean hourly wage rate for Human Resources Managers
in May 2022 was $70.07. See U.S. Bureau of Lab. Stats., Employment
of Human Resources Managers, by State, May 2022 (2022), https://www.bls.gov/oes/current/oes113121.htm#st). For this analysis, the
Commission used a fringe benefits rate of 45 percent and an overhead
rate of 17 percent, resulting in a fully loaded hourly compensation
rate for Human Resources Managers of $113.51 ($70.07 + ($70.07 x
0.45) + ($70.07 x 0.17)).
\305\ U.S. Bureau of Lab. Stats., Employer Costs for Employee
Compensation for State and Local Government Workers by Occupational
and Industry Group (Mar. 17, 2023), https://www.bls.gov/news.release/ecec.t03.htm. Total employer compensation costs for
State and local government averaged $57.60 per hour worked (see row
1, column 1 of the cited table). Average wages and salaries ranged
from $68.57 in management, professional, and related occupations
(row 3) to $40.05 (row 7) in sales and office occupation. This
analysis uses the high estimate of $68.57 per hour worked, which
includes average wage and salary cost of $43.87 per hour (row 3,
column 3) and average benefit costs of $24.70 per hour (row 3,
column 5).
\306\ In 2023, a GS-14, Step 5 salary is $63.21 per hour. See
Office of Pers. Mgmt., Salary Table 2023-RUS (Jan. 2023), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/RUS_h.pdf.
[[Page 54761]]
Table 10--One-Time Administrative Costs
----------------------------------------------------------------------------------------------------------------
Equal
Number of Time for rule opportunity Rule
establishments familiarization officer fully familiarization
loaded wage cost
(a)................ (b)................ (c) (a) x (b) x (c)
----------------------------------------------------------------------------------------------------------------
Private employers in States with 1.4 million........ 0.5 hours.......... $113.51 $79 million.
existing PWFA-type laws.
Private employers in States 1.3 million........ 1.5 hours.......... 113.51 221 million.
without existing PWFA-type laws.
Public employers in States with 3,255 \307\........ 0.5 hours.......... 68.57 100,000.
existing PWFA-laws.
Public employers in States 2,533 \308\........ 1.5 hours.......... 68.57 260,000.
without existing PWFA-type laws.
Federal Government............... 209 \309\.......... 1.5 hours.......... \310\ 93.01 30,000.
------------------------------------------------------------------------------
Total........................ ................... ................... .............. $300.39 million.
----------------------------------------------------------------------------------------------------------------
Table 11 provides the analysis of discount rates at 3% and 7% as
required by OMB Circular A-4 for the lower and upper bound costs of
providing accommodations. Table 12 provides that information for the
one-time administrative costs.
---------------------------------------------------------------------------
\307\ Based on the distinct number of State and local government
filers of the 2021 EEO-4 survey where available and the 2021 Annual
Survey of Public Employment & Payroll (ASPEP) when not available.
\308\ Id.
\309\ See U.S. Equal Emp. Opportunity Comm'n, Department or
Agency List with Second Level Reporting Components, https://www.eeoc.gov/federal-sector/management-directive/department-or-agency-list-second-level-reporting-components (last visited Mar. 22,
2023).
\310\ As described above, a GS-14, Step 5 salary is $63.21 per
hour. See Off. of Pers. Mgmt., Salary Table 2023-RUS (Jan. 2023),
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/RUS_h.pdf. This is then adjusted for average
hourly benefits for Federal workers. See Cong. Budget Off.,
Comparing the Compensation of Federal and Private-Sector Employees,
2011 to 2015, at 14 (Apr. 25, 2017) https://www.cbo.gov/system/files/115th-congress-2017-2018/reports/52637-federalprivatepay.pdf
(reporting that the average benefits for Federal employees range
from $21.30 per hour to $29.80 per hour). This analysis uses the
high estimate of $29.80 to compute the total hourly compensation at
$93.01 ($63.21 + $29.80).
\311\ Off. of Mgmt. and Budget, Circular A-4 (Sept. 17, 2003),
https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/
(addressing discount rates).
Table 11--Annualized Reasonable Accommodation Costs (In $ millions) at 0% (Undiscounted), 3%, 7% Discount Rates
\311\
----------------------------------------------------------------------------------------------------------------
State and
Private--all Federal local
government government
----------------------------------------------------------------------------------------------------------------
Lower Bound
----------------------------------------------------------------------------------------------------------------
Estimated reasonable accommodation costs........................ $30.4 $1.3 $4.0
----------------------------------------------------------------------------------------------------------------
Assuming useful life of accommodations to be 5 years
----------------------------------------------------------------------------------------------------------------
Annualized, 0% discount rate, 5 years........................... 6.07 0.3 0.8
Annualized, 3% discount rate, 5 years........................... 6.63 0.27 0.87
Annualized, 7% discount rate, 5 years........................... 7.40 0.31 0.97
Total, 0% discount rate, 5 years................................ 30.4 1.3 4.0
Total, 3% discount rate, 5 years................................ 33.1 1.4 4.3
Total, 7% discount rate, 5 years................................ 37.0 1.5 4.8
----------------------------------------------------------------------------------------------------------------
Assuming useful life of accommodations to be 10 years
----------------------------------------------------------------------------------------------------------------
Annualized, 0% discount rate, 10 years.......................... 3.04 0.1 0.4
Annualized, 3% discount rate, 10 years.......................... 3.56 0.15 0.46
Annualized, 7% discount rate, 10 years.......................... 4.32 0.18 0.56
Total, 0% discount rate, 10 years............................... 30.4 1.3 4.0
Total, 3% discount rate, 10 years............................... 35.6 1.5 4.6
Total, 7% discount rate, 10 years............................... 43.2 1.8 5.6
----------------------------------------------------------------------------------------------------------------
Upper Bound
-----------------------------------------------
Estimated reasonable accommodation costs........................ 91.1 3.8 12.1
----------------------------------------------------------------------------------------------------------------
Assuming useful life of accommodations to be 5 years
----------------------------------------------------------------------------------------------------------------
Annualized, 0% discount rate, 5 years........................... 18.22 0.8 2.4
Annualized, 3% discount rate, 5 years........................... 19.89 0.84 2.65
Annualized, 7% discount rate, 5 years........................... 22.21 0.94 2.96
Total, 0% discount rate, 5 years................................ 91.1 3.8 12.1
Total, 3% discount rate, 5 years................................ 99.4 4.2 13.2
[[Page 54762]]
Total, 7% discount rate, 5 years................................ 111.1 4.7 14.8
----------------------------------------------------------------------------------------------------------------
Assuming useful life of accommodations to be 10 years
----------------------------------------------------------------------------------------------------------------
Annualized, 0% discount rate, 10 years.......................... 9.11 0.38 1.21
Annualized, 3% discount rate, 10 years.......................... 10.68 0.45 1.42
Annualized, 7% discount rate, 10 years.......................... 12.97 0.55 1.73
Total, 0% discount rate, 10 years............................... 91.1 3.8 12.1
Total, 3% discount rate, 10 years............................... 106.8 4.5 14.2
Total, 7% discount rate, 10 years............................... 129.7 5.5 17.3
----------------------------------------------------------------------------------------------------------------
Table 12--Annualized Administrative Costs
----------------------------------------------------------------------------------------------------------------
Estimated administrative costs (in $ millions)
-----------------------------------------------
Year State and
Private--all Federal local
government government
----------------------------------------------------------------------------------------------------------------
1............................................................... $301 $0.03 $0.37
2............................................................... 0 0 0
3............................................................... 0 0 0
4............................................................... 0 0 0
5............................................................... 0 0 0
6............................................................... 0 0 0
7............................................................... 0 0 0
8............................................................... 0 0 0
9............................................................... 0 0 0
10.............................................................. 0 0 0
Annualized, 3% discount rate, 10 years.......................... 35.26 0.003 0.04
Annualized, 7% discount rate, 10 years.......................... 42.83 0.004 0.05
Total, 3% discount rate, 10 years (in millions)................. 353 0.03 0.44
Total, 7% discount rate, 10 years (in millions)................. 428 0.04 0.53
----------------------------------------------------------------------------------------------------------------
E. Time Horizon of Analysis
Neither the PWFA nor the proposed rule contains a sunset provision.
The cost analysis assumes a one-time administrative cost for
employers, and the amount of time varies depending on whether the
employer is in a State with or without its own version of the PWFA.
The cost and benefit analysis calculates the annual cost of
accommodations per pregnant worker who may need them. Because different
workers enter the labor market every year and may become pregnant, or a
worker who was pregnant may become pregnant again, the Commission does
not believe that the need for accommodations or the costs or benefits
will substantially change over time.
F. Range of Regulatory Alternatives
The range of alternatives available to the Commission consistent
with the Executive Order is narrow:
Because 42 U.S.C. 2000gg-3(a) requires the Commission to
issue regulations, the Commission could not consider non-regulatory
alternatives.
Because 42 U.S.C. 2000gg determine coverage, the
Commission could not consider exemptions based on firm size or
geography.
Because 42 U.S.C. 2000gg-2 of the PWFA provides how the
statute will be enforced, the Commission could not consider alternative
methods of enforcement, such as market-oriented approaches, performance
standards, default rules, monitoring by other agencies, or reporting.
Because section 109 of the PWFA states when the law will
go into effect, the Commission could not consider alternative
compliance dates.\312\
---------------------------------------------------------------------------
\312\ Consolidated Appropriations Act, 2023, Public Law 117-328,
Division II, 136 Stat. 4459, 6089 (2022).
---------------------------------------------------------------------------
Further, because the PWFA is a Federal law that intentionally sets
a national standard, the Commission could not consider deferring to
State or local regulations. The one exception to this is that 42 U.S.C
2000gg-5(a)(1) provides that nothing in the PWFA invalidates or limits
rights under Federal, State, or local laws that provide equal or
greater protection for individuals affected by pregnancy, childbirth,
or related medical conditions. The proposed rule includes this
language. Thus, the proposed rule does not preempt State or local
regulations that provide equal or greater protection relative to the
PWFA.
The Commission considered two regulatory alternatives, discussed
below. The Commission does not believe that either alternative would
decrease the costs for covered entities.
1. Definition of ``In the Near Future''
42 U.S.C 2000gg(6) of the PWFA defines a ``qualified'' employee to
include employees whose inability to perform one or more essential
functions of the job is temporary, who will be able to perform the
essential functions ``in the near future,'' and whose inability to
perform essential function(s) can be reasonably accommodated without
undue hardship.
The proposed rule defines ``in the near future'' to mean
``generally within forty weeks.'' The Commission considered, but
rejected, shorter periods such as six months or less \313\ for several
[[Page 54763]]
reasons. First, pregnancy generally lasts forty weeks; a rule that a
worker is only ``qualified'' if they are able to perform all the
essential functions of the job within six months of the function(s)
being temporarily excused as a reasonable accommodation could classify
many workers who need a temporary suspension of an essential
function(s) for a longer period as ``unqualified'' and therefore
ineligible for reasonable accommodations. The Commission believes that
this outcome would frustrate the purpose of the statute, which is to
enable employees who need temporary accommodations related to
pregnancy, childbirth, or related medical conditions to continue
working.
---------------------------------------------------------------------------
\313\ H.R. Report No. 117-27, pt.1 at 28 (citing Robert v. Bd.
of Cnty. Comm'rs of Brown Cnty., 691 F.3d 1211, 1218 (10th Cir.
2012)). Although it does not define ``in the near future,'' Robert
cites to Epps v. City of Pine Lawn, 353 F.3d 588, 593 (8th Cir.
2003), which found that under the ADA, a request for leave that
would last six months was too long to be ``in the near future'' to
qualify as a possible reasonable accommodation.
---------------------------------------------------------------------------
Second, defining ``in the near future'' to mean ``generally forty
weeks'' does not mean that the employer will be required to actually
provide a reasonable accommodation for that length of time. The
definition of ``in the near future'' is one step in the definition of
qualified; even if an employee can meet this part of the definition, an
employer still may refuse to provide an accommodation if the employer
cannot reasonably accommodate the temporary suspension of the essential
function or if doing so would impose undue hardship (defined as
significant difficulty or expense, relative to the employer's overall
resources). It is the Commission's hope that setting a single standard
for the meaning of ``in the near future'' will benefit both employers
and employees by reducing litigation over the meaning of the term and
placing the focus on the central issue of whether the accommodation
would impose an undue hardship.
If the definition of ``qualified'' is ``generally forty weeks''
rather than ``less than six months,'' more workers will be able to meet
the definition of qualified. It is not possible to estimate how many.
The Commission anticipates that there will be little or no additional
cost to covered entities because it is the act of providing an
accommodation--not classifying an individual as meeting part of the
definition of qualified--that imposes actual costs on the employer. A
covered entity can still argue that the accommodation would impose an
undue hardship. Further, even if it provides the accommodation, the
covered entity is likely to experience a cost saving from not having to
recruit, hire, or train a new worker.
The Commission also considered not defining the term ``in the near
future,'' but determined that doing so would harm employers by
increasing uncertainty and harm employees by failing to ensure equal
treatment.
2. Predictable Assessments
In the section defining ``undue hardship,'' the proposed rule lists
four job modifications often sought by pregnant workers that, in
virtually all cases, will be found to be reasonable accommodations that
do not impose undue hardship: (1) carrying water and drinking water as
needed; (2) allowing additional restroom breaks; (3) allowing sitting
for those whose work requires standing and standing for those whose
work requires sitting; and (4) allowing breaks as needed to eat and
drink.
As explained in the preamble, these accommodations are repeatedly
discussed in the PWFA's legislative history as common sense, low-cost
accommodations that most pregnant workers will need.\314\ To increase
efficiency and to decrease the time that it takes for workers to
receive these accommodations, the Commission has determined that these
modifications will in virtually all cases be determined to be
reasonable accommodations that do not impose an undue hardship.
---------------------------------------------------------------------------
\314\ 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).
---------------------------------------------------------------------------
As an alternative to providing that these simple, common-sense
modifications will virtually always be determined to be reasonable
accommodations that do not impose undue hardship, the Commission
considered taking the position that such modifications would always be
reasonable accommodations and never impose undue hardship. The
Commission decided against this approach because some employers may
encounter circumstances that would lead to a determination that these
modifications are not reasonable accommodations and/or would impose an
undue hardship.
The Commission also considered the option of not including
information regarding ``predictable assessments'' in the proposed rule.
The Commission determined that providing this information will be
helpful to the public because doing so explains to covered entities and
employees how the Commission intends to enforce the PWFA, potentially
increases voluntary compliance, and increases certainty for covered
entities, which will decrease costs.
The Commission does not anticipate that the proposed rule's
``predictable assessments'' section would increase costs for covered
entities. The examples given are low- to no-cost accommodations, and
under the proposed rule, the employer may still claim that these
modifications would impose an undue hardship.
G. Uncertainty in Benefits, Costs, and Net Benefits
The Commission has based its estimates of the costs and benefits of
the proposed rule on the best data available to it at the current time.
Nevertheless, the Commission recognizes these estimates are somewhat
uncertain in several respects.
First, the data used to estimate the cost of providing
accommodations as required by the PWFA come entirely from research on
the cost of accommodations for individuals with disabilities; the
Commission is not aware of any data concerning the cost of
accommodations that relate specifically to pregnancy, childbirth, or
related medical conditions.
Second, the estimated cost for accommodations is based on the
probable number of pregnant workers in the workplace. Due to lack of
available data, the estimates do not attempt to account specifically
for the cost of accommodations related to childbirth (such as leave for
recovery) or related medical conditions. The Commission nevertheless
believes the cost of these accommodations will not significantly change
its estimates. For example, leave needed for recovery from childbirth
is likely to be for a relatively short period of time--usually 6 to 10
weeks--and the PFWA does not require such leave to be paid. Further,
according to the Bureau of Labor Statistics, 88 percent of workers have
access to unpaid family leave independent of the PFWA, either through
the FMLA or otherwise.\315\ With respect to these individuals, any
costs attributable specifically to the PFWA for leave related to
childbirth would be limited to the short period of time during which
such leave is required, but unavailable from those other sources.
---------------------------------------------------------------------------
\315\ U.S. Bureau of Lab. Stats., Access to Paid and Unpaid
Family Leave in 2018 (Feb. 27, 2019), https://www.bls.gov/opub/ted/2019/access-to-paid-and-unpaid-family-leave-in-2018.htm.
---------------------------------------------------------------------------
H. Conclusion
As detailed above, the estimated annual cost of providing
[[Page 54764]]
accommodations required by the proposed rule and underlying statute--
but not independently required by a State or local law substantially
similar to the PWFA--is estimated to be up to $18 million for private
employers, $2.4 million for State and local governments, and $800,000
for the Federal Government. In addition, employers are expected to face
one-time costs associated with complying with the rule and underlying
statute. These are estimated to be $300 million for private employers,
$360,000 million for State and local governments, and $30,000 for the
Federal Government.
These figures are almost certainly overestimates of the costs
imposed by the rule, in part because some of the accommodations
required by the proposed rule and underlying statute are already
required under the ADA and Title VII and some employers voluntarily
provide accommodations. Due to a lack of data, however, the Commission
was unable to account for this overlap in the above analysis.
The Commission has nevertheless determined that the benefits of the
proposed rule and underlying statute justify its costs.\316\ The annual
costs associated with the main requirement of the rule--to give
reasonable accommodations to individuals who need them because of
pregnancy, childbirth, or related medical conditions--are not
``economically significant'' under E.O. 12866. And although the
aggregate one-time compliance costs are in excess of $200 million, and
therefore ``economically significant,'' the estimated cost on a per-
establishment basis is very low--$56.76 and $170.27, depending on
whether or not the State in which the entity is located has a law
substantially similar to the PWFA.
---------------------------------------------------------------------------
\316\ 76 FR 3821, supra note 205.
---------------------------------------------------------------------------
The benefits of the proposed rule and underlying statute to workers
affected by pregnancy, childbirth, or related medical conditions,
however, are significant, including improved health, improved economic
security, and increased equity, human dignity, and fairness. The number
of individuals who may experience such benefits is relatively large--
the number of workers who will be newly entitled to reasonable
accommodations for pregnancy is estimated to be between 240,000 and
710,000 per year. This number does not include the children, family
members, and members of society at large who also will potentially
enjoy some of the benefits listed above.
The Commission further concludes that the proposed rule is tailored
to impose the least burden on society consistent with achieving the
regulatory objectives, and that the agency has selected the approach
that maximizes net benefits. The range of alternatives available to the
Commission was extremely limited. The alternatives that were consistent
with the PWFA's statutory language would not, in the Commission's
opinion, reduce costs on employers.
The Commission invites members of the public to comment on any
aspect of this IRIA, and to submit to the Commission any data that
would further inform the Commission's analysis.
Regulatory Flexibility Act and Executive Order 13272 (Proper
Consideration of Small Entities in Agency Rulemaking)
The Regulatory Flexibility Act (RFA), 5 U.S.C. chapter 6, requires
the Commission to evaluate the economic impact of this proposed rule on
small entities. The RFA defines small entities to include small
businesses, small organizations, including not-for-profit
organizations, and small governmental jurisdictions. The Commission
must determine whether the proposed rule would impose a significant
economic impact on a substantial number of such small entities.
When an agency issues a rulemaking proposal, the RFA requires the
agency to ``prepare and make available for public comment an initial
regulatory flexibility analysis'' which will ``describe the impact of
the proposed rule on small entities.'' \317\ Section 605 of the RFA
allows an agency to certify a rule, in lieu of preparing an analysis,
if the proposed rulemaking is not expected to have a significant
economic impact on a substantial number of small entities. For the
reasons outlined below, the Chair of the Commission hereby certifies
that this rule will not have a significant economic impact on a
substantial number of small entities.
---------------------------------------------------------------------------
\317\ 5 U.S.C. 603(a).
---------------------------------------------------------------------------
Small businesses range in size, based on the industry, between 1-
1,500 employees; \318\ the PWFA and the proposed rule apply to all
employers in the United States with at least 15 employees. Thus, for
purposes of the RFA the Commission has determined that the proposed
regulation will have an impact on a substantial number of small
entities.\319\
---------------------------------------------------------------------------
\318\ U.S. Small Bus. Admin., Table of Size Standards (Mar. 17,
2023), https://www.sba.gov/document/support-table-size-standards.
\319\ For example, there are over 1 million businesses with
between 20 and 500 employees. U.S. Census Bureau, Small Business
Week: April 30-May 6, 2023 (April 30, 2023) https://www.census.gov/newsroom/stories/small-business-week.html.
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However, the Commission has determined that the impact on entities
affected by the PWFA and the proposed rule will not be significant. As
detailed in the IRIA above, the impact on small entities in States and
localities that have laws substantially similar to the PWFA will be
limited to a one-time administrative cost of approximately $56.76.
Small entities that are not already subject to State or local laws
substantially similar to the PWFA will face a one-time administrative
cost of approximately $170.27, plus annual costs associated with
providing reasonable accommodations consistent with the rule and
underlying statute. To calculate the cost of providing such
accommodations, the Commission has constructed cost estimates for a
range of small business sizes.
Table 13--Annual Costs for Reasonable Accommodations for Small Businesses Based on Size
--------------------------------------------------------------------------------------------------------------------------------------------------------
50.6% Non-zero
Needing cost
4.7% Pregnant accommodations: 23% accommodations: Total expected
Number of employees 33% Women aged in a given (lower bound lower bound cost: lower bound
16-50 year estimate)-- 71% estimate-- higher estimate--higher
(upper bound bound estimate bound estimate
estimate) (rounded up)
--------------------------------------------------------------------------------------------------------------------------------------------------------
15.......................................................... 4.95 0.233 0.054-0.165 1 $60
50.......................................................... 16.5 0.7755 0.178-0.55 1 60
100......................................................... 33 1.551 0.357-1.01 1 60
[[Page 54765]]
150......................................................... 49.5 2.3265 0.535-1.652 1 60
200......................................................... 66 3.102 0.713-2.202 1-2 60-120
250......................................................... 82.5 3.878 0.892-2.75 1-2 60-120
500......................................................... 165 7.755 1.78-5.5 1-3 60-180
750......................................................... 247.5 11.633 2.676-8.259 2-5 120-300
1000........................................................ 330 15.51 3.567-11.012 2-6 120-360
1250........................................................ 412.5 19.388 4.459-13.765 3-7 180-420
1500........................................................ 495 23.265 5.351-16.518 3-9 180-540
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Using the amounts for a small entity with 500 employees as an
example, the calculation was conducted as follows:
Based on data outlined in the IRIA above, the Commission
estimates that approximately 33 percent, or 165, of these workers are
women of reproductive age (aged 16-50 years), and that approximately
4.7 percent of these, or 7.755 workers, will give birth to at least one
child during a given year.
The Commission again adopts 71 percent as its upper-bound
estimate and 23 percent as its lower-bound estimate of the percentage
of pregnant workers who will need a reasonable accommodation related to
pregnancy.
Thus, the Commission estimates that between 1.78 (23
percent of 7.755) and 5.5 (71 percent of 7.755) employees of a small
entity with 500 employees will require annually a reasonable
accommodation under the PWFA.
The Commission further assumes, based on data regarding
the average cost of reasonable accommodations for individuals with
disabilities presented in the IRIA above, that 50.6 percent of the
required accommodations will have a non-zero cost.
This yields lower- and upper-bound estimates of the number
of non-zero cost accommodations of 0.90 (50.6 percent of 1.78) and 2.79
(50.6 percent of 5.5) respectively. Rounding up these numbers, the
Commission estimates that a small entity with 500 employees will be
required to provide between 1 and 3 additional non-zero cost
accommodations per year as a result of the proposed rule and underlying
statute. Multiplying by an average cost of $60 per year for each
accommodation, the estimated total cost for accommodations required
under the PWFA per small entity with 500 employees is between $60 and
$180.
To calculate total costs, the cost of compliance is added together
with the cost of accommodation. For entities that are already subject
to laws substantially similar to the PWFA, compliance costs are
estimated to be $56.75 in the first year. Since these entities are
already required to provide accommodations consistent with the PWFA,
they will face no additional costs for accommodations. The total costs
faced by these entities are thus estimated to be $56.75.
For entities that are not already subject to laws substantially
similar to the PWFA, the estimated cost of compliance is $170.27 during
the first year. Added to this is the annual cost of providing
reasonable accommodations, estimated to be between $60 (lower bound
estimate, for businesses with 15 employees) and $540 (upper bound
estimate, for businesses with 1,500 employees). This yields a total
estimated cost per small entity not already subject to a law
substantially similar to the PWFA of between $230.27 and $710.27 in the
first year, and between $60 and $540 annually thereafter.
This is not likely to represent a ``significant'' economic impact
for many small entities, if any. Further, the Commission notes that all
businesses in the United States with 15 or more employees already must
comply with Title VII and the ADA, both of which could, in certain
circumstances, require accommodations for workers affected by
pregnancy, childbirth, or related medical conditions. Further, Title
VII, the ADA, and State laws requiring accommodations for pregnancy
apply to all industries; given that, the Commission does not believe
that the PWFA will have a greater effect in any industry. The
Commission seeks comment regarding its analysis and conclusion that the
regulation will not have a significant economic impact on small
entities; in particular, the Commission seeks comment regarding any
existing data quantifying impacts on small entities.
Accordingly, the Chair of the Commission hereby certifies that this
rule will not have a significant economic impact on a substantial
number of small entities. As addressed above, the Commission invites
comment from members of the public who believe there will be a
significant impact on small entities.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
requires the EEOC to consider the impact of information collection
burdens imposed on the public. The PRA typically requires an agency to
provide notice and seek public comments on any ``collection of
information'' contained in a rule.\320\
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\320\ See 44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8.
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The Commission has determined that there is no new requirement for
information collection associated with this proposed rule.
Consequently, this proposed rule does not require review by the
Office of Management and Budget under the authority of the PRA.
Executive Order 13132 (Federalism)
The EEOC has reviewed this proposed rule in accordance with
Executive Order 13132 regarding federalism and has determined that it
does not have ``federalism implications.'' 42 U.S.C. 2000gg(2) provides
that the PWFA applies to employers as that term is defined in Title
VII. States and local governments are subject to Title VII, including
its prohibition on sex discrimination, which includes discrimination
based on pregnancy, childbirth, or related medical conditions. 42
U.S.C. 2000gg-4 provides that a State will not be immune under the 11th
Amendment to actions brought
[[Page 54766]]
under the PWFA in a court of competent jurisdiction and that in any
action against a State for a violation of the PWFA, remedies, including
remedies both at law and in equity, are available for such violation to
the same extent that they are available against any other public or
private entity. The proposed rule does not limit or expand these
statutory definitions. Additionally, the regulation will not have
substantial direct effects ``on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Unfunded Mandates Reform Act of 1995
Section 202(a) of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires that the Commission determine whether a regulation proposes a
Federal mandate that may result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more in a single year (adjusted annually for inflation).
However, 2 U.S.C. 1503 excludes from UMRA's ambit any provision in a
proposed or final regulation that, among other things, enforces
constitutional rights of individuals or establishes or enforces any
statutory rights that prohibit discrimination on the basis of race,
color, religion, sex, national origin, age, handicap, or disability;
thus, UMRA does not apply to the PWFA.\321\
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\321\ H.R. Report No. 117-27, pt.1, at 41 (containing a report
by the Congressional Budget Office stating that the PWFA was not
reviewed ``for intergovernmental or private-sector mandates''
because it falls within the exception to the Unfunded Mandates
Reform Act as it ``would extend protections against discrimination
in the workplace based on sex to employees requesting reasonable
accommodation for pregnancy, childbirth, or related medical
conditions'').
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Plain Language
The Commission has attempted to draft this NPRM in plain language.
The Commission invites comment on any aspect of this NPRM that does not
meet this standard.
Assessment of Federal Regulations and Policies on Families
The undersigned hereby certifies that the proposed rule would not
adversely affect the well-being of families, as discussed under section
654 of the Treasury and General Government Appropriations Act of 1999.
To the contrary, by providing reasonable accommodation to workers with
known limitations related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions, absent undue hardship, the
proposed rule would have a positive effect on the economic well-being
and security of families.
Executive Order 13175 (Indian Tribal Governments)
This rule does not have tribal implications under Executive Order
13175 that require a tribal summary impact statement. The rule would
not have substantial direct effects on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes. The definition of ``covered entity'' in
the PWFA follows that of Title VII; Title VII exempts ``a corporation
wholly owned by an Indian tribe.'' \322\
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\322\ 42 U.S.C. 2000e(b).
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Executive Order 12988 (Civil Justice Reform)
This proposed rule was drafted and reviewed in accordance with
Executive Order 12988 and will not unduly burden the Federal court
system. The proposed rule was: (1) reviewed to eliminate drafting
errors and ambiguities; (2) written to minimize litigation; and (3)
written to provide a clear legal standard for affected conduct and to
promote burden reduction.
For the Commission:
Charlotte A. Burrows,
Chair.
List of Subjects in 29 CFR Part 1636
Administrative practice and procedure, Equal employment
opportunity, Reasonable accommodation, Pregnancy.
For the reasons set forth in the preamble, the EEOC proposes to
amend 29 CFR chapter XIV by adding part 1636 to read as follows:
PART 1636--PREGNANT WORKERS FAIRNESS ACT
Sec.
1636.1 Purpose.
1636.2 Definitions--general.
1636.3 Definitions--specific to PWFA.
1636.4 Prohibited practices.
1636.5 Remedies and enforcement.
1636.6 Waiver of State immunity.
1636.7 Relationship to other laws.
1636.8 Severability.
Appendix A to Part 1636--Interpretive Guidance on the Pregnant
Workers Fairness Act.
Authority: 42 U.S.C. 2000gg et seq.
Sec. 1636.1 Purpose.
(a) The purpose of this part is to implement the Pregnant Workers
Fairness Act, 42 U.S.C. 2000gg et seq.
(b) The PWFA:
(1) Requires a covered entity to provide a reasonable accommodation
for a known limitation of a qualified employee or applicant related to
pregnancy, childbirth, or related medical conditions, absent undue
hardship;
(2) Prohibits a covered entity from requiring a qualified employee
or applicant to accept an accommodation other than a reasonable
accommodation arrived at through the interactive process;
(3) Prohibits the denial of employment opportunities based on the
need of the covered entity to make a reasonable accommodation for the
known limitation of a qualified employee or applicant;
(4) Prohibits a covered entity from requiring a qualified employee
to take leave if another reasonable accommodation can be provided;
(5) Prohibits a covered entity from taking adverse actions in
terms, conditions, or privileges of employment against a qualified
employee, applicant, or former employee for requesting or using a
reasonable accommodation for known limitations related to pregnancy,
childbirth, or related medical conditions;
(6) Prohibits a covered entity from retaliating against an
employee, applicant, or former employee for opposing unlawful
discrimination under the PWFA or participating in a proceeding under
the PWFA;
(7) Prohibits a covered entity from interfering with any
individual's rights under the PWFA; and
(8) Provides remedies for individuals whose rights under the PWFA
are violated.
Sec. 1636.2 Definitions--general.
(a) Commission means the Equal Employment Opportunity Commission
established by section 705 of the Civil Rights Act of 1964, 42 U.S.C.
2000e-4.
(b) Covered entity means Respondent as defined in section 701(n) of
the Civil Rights Act of 1964, 42 U.S.C. 2000e(n) and includes:
(1) Employer, which is a person engaged in an industry affecting
commerce who has 15 or more employees, as defined in 701(b) of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(b);
(2) Employing Office, as defined in section 101 of the
Congressional Accountability Act of 1995, 2 U.S.C. 1301, and 3 U.S.C.
411(c);
[[Page 54767]]
(3) An entity employing a State employee or employing an employee
of a State subdivision described in section 304(a) of the Government
Employee Rights Act of 1991, 42 U.S.C. 2000e-16c(a); and
(4) An entity to which section 717(a) of the Civil Rights Act of
1964, 42 U.S.C. 2000e-16(a) applies.
(c) Employee means:
(1) An employee (including an applicant) as defined in section
701(f) of the Civil Rights Act of 1964, 42 U.S.C. 2000e(f);
(2) A covered employee (including an applicant) as defined in
section 101 of the Congressional Accountability Act of 1995, 2 U.S.C.
1301, and an individual described in section 201(d) of that Act, 2
U.S.C. 1311(d);
(3) A covered employee (including an applicant) as defined in 3
U.S.C. 411(c);
(4) A State employee (including an applicant) or an employee or
applicant of a State subdivision described in section 304(a) of the
Government Employee Rights Act of 1991, 42 U.S.C. 2000e-16c(a); and
(5) An employee (including an applicant) to which section 717(a) of
the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(a) applies.
(d) Person means ``person'' as defined by section 701(a) of the
Civil Rights Act of 1964, 42 U.S.C. 2000e(a).
Sec. 1636.3 Definitions--specific to the PWFA.
(a) Known limitation means a physical or mental condition related
to, affected by, or arising out of pregnancy, childbirth, or related
medical conditions that the employee or applicant or the representative
of the employee or applicant has communicated to the covered entity,
whether or not such condition meets the definition of disability
specified in section 3 of the Americans with Disabilities Act of 1990,
42 U.S.C. 12102.
(1) Known in terms of limitation means the employee or applicant,
or a representative of the employee or applicant, has communicated the
limitation to the employer.
(2) Limitation means a physical or mental condition related to,
affected by, or arising out of pregnancy, childbirth, or related
medical conditions. ``Physical or mental condition'' is an impediment
or problem that may be modest, minor, and/or episodic. The physical or
mental condition may also be that an employee or applicant affected by
pregnancy, childbirth, or related medical conditions has a need or a
problem related to maintaining their health or the health of the
pregnancy. The definition also includes when the worker is seeking
health care related to pregnancy, childbirth, or a related medical
condition itself. A ``physical or mental condition'' does not need to
meet the definition of disability from the Americans with Disabilities
Act (42 U.S.C. 12111 et seq.).
(b) Pregnancy, childbirth, or related medical conditions:
``Pregnancy'' and ``childbirth'' include, but are not limited to,
current pregnancy; past pregnancy; potential or intended pregnancy;
labor; and childbirth (including vaginal and cesarean delivery).
``Related medical conditions'' are medical conditions which relate to,
are affected by, or arise out of pregnancy or childbirth, as applied to
the specific employee or applicant in question, including, but not
limited to, termination of pregnancy, including via miscarriage,
stillbirth, or abortion; infertility; fertility treatment; ectopic
pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or
perineal wound infection; maternal cardiometabolic disease; gestational
diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and
low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis;
sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines;
dehydration; hemorrhoids; nausea or vomiting; edema of the legs,
ankles, feet, or fingers; high blood pressure; infection; antenatal
(during pregnancy) anxiety, depression, or psychosis; postpartum
depression, anxiety, or psychosis; frequent urination; incontinence;
loss of balance; vision changes; varicose veins; changes in hormone
levels; vaginal bleeding; menstrual cycles; use of birth control; and
lactation and conditions related to lactation, such as low milk supply,
engorgement, plugged ducts, mastitis, or fungal infections. This list
is non-exhaustive, and an employee or applicant does not have to
specify a condition on this list or use medical terms to describe a
condition in order to be eligible for a reasonable accommodation.
(c) Employee representative means a family member, friend, health
care provider, or other representative of the employee or applicant.
(d) Communicated to the employer means an employee or applicant, or
a representative of the employee or applicant, has made the request for
an accommodation to the covered entity by communicating with a
supervisor, manager, someone who has supervisory authority for the
employee (or the equivalent for the applicant), or human resources
personnel, or by following the steps in the covered entity's policy to
request an accommodation.
(1) The communication may be made orally, in writing, or by another
effective means.
(2) A covered entity may not require that the communication be in
writing, in any specific format, or on any particular form in order to
be considered ``communicated to the employer.''
(3) To request a reasonable accommodation, the employee or
applicant, or a representative of the employee or applicant, need only
communicate to the covered entity that the employee or applicant:
(i) Has a limitation, and
(ii) Needs an adjustment or change at work.
(e) Consideration of mitigating measures--
(1) The determination of whether an employee or applicant has a
known limitation shall be made without regard to the ameliorative
effects of mitigating measures.
(2) The non-ameliorative effects of mitigating measures, such as
negative side effects of medication or burdens associated with
following a particular treatment regimen, may be considered when
determining whether an employee or applicant has a limitation.
(f) Qualified employee or applicant with respect to an employee or
applicant with a known limitation under the PWFA means:
(1) An employee or applicant who, with or without reasonable
accommodation, can perform the essential functions of the employment
position.
(i) With respect to leave as an accommodation, the relevant inquiry
is whether the employee is reasonably expected to be able to perform
the essential functions, with or without a reasonable accommodation, at
the end of the leave, if time off is granted, or if the employee is
qualified as set out in paragraph (f)(2) of this section after
returning from leave.
(2) Additionally, an employee or applicant shall be considered
qualified if they cannot perform one or more essential functions if:
(i) Any inability to perform an essential function is for a
temporary period, where ``temporary'' means lasting for a limited time,
not permanent, and may extend beyond ``in the near future'';
(ii) The essential function(s) could be performed in the near
future, where ``in the near future'' means the ability to perform the
essential function(s) will generally resume within forty weeks of its
suspension; and
(iii) The inability to perform the essential function can be
reasonably accommodated. This may be
[[Page 54768]]
accomplished by temporary suspension of the essential function(s) and
the employee performing the remaining functions of their position or,
depending on the position, other arrangements, including, but not
limited to: the employee performing the remaining functions of their
position and other functions assigned by the covered entity; the
employee performing the functions of a different job to which the
covered entity temporarily transfers or assigns the employee; or the
employee being assigned to light duty or modified duty or participating
in the covered entity's light or modified duty program.
(g) Essential functions mean the fundamental job duties of the
employment position the employee or applicant holds or desires. The
term ``essential functions'' does not include the marginal functions of
the position.
(1) A job function may be considered essential for any of several
reasons, including but not limited to the following:
(i) The function may be essential because the reason the position
exists is to perform that function;
(ii) The function may be essential because of the limited number of
employees available among whom the performance of that job function can
be distributed; and/or
(iii) The function may be highly specialized so that the incumbent
in the position is hired for their expertise or ability to perform the
particular function.
(2) Evidence of whether a particular function is essential
includes, but is not limited to:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(h) Reasonable accommodation--generally. With respect to an
employee or applicant with a known limitation under the PWFA,
reasonable accommodation includes:
(1) Modifications or adjustments to a job application process that
enable an applicant with a known limitation under the PWFA to be
considered for the position such applicant desires; or
(2) Modifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified employee or applicant
with a known limitation under the PWFA to perform the essential
functions of that position; or
(3) Modifications or adjustments that enable a qualified employee
or applicant with a known limitation under the PWFA to enjoy equal
benefits and privileges of employment; or
(4) Temporary suspension of essential function(s) and/or
modifications or adjustments that permit the temporary suspension of
essential function(s).
(5) To determine the appropriate reasonable accommodation, it may
be necessary for the covered entity to initiate an informal,
interactive process as explained in paragraph (k) of this section.
(i) Reasonable accommodation--examples. Reasonable accommodation
may include, but is not limited to:
(1) Making existing facilities used by employees readily accessible
to and usable by employees and applicants with known limitations under
the PWFA;
(2) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; breaks for use of the restroom,
drinking, eating, and/or resting; acquisition or modification of
equipment, uniforms, or devices, including devices that assist with
lifting or carrying for jobs that involve lifting and/or carrying;
modifying the work environment; providing seating for jobs that require
standing, or standing for jobs that require sitting; appropriate
adjustment or modifications of examinations or policies; permitting the
use of paid leave (whether accrued, as part of a short-term disability
program, or any other employer benefit) or providing additional unpaid
leave for reasons, including, but not limited to, recovery from
childbirth, miscarriage, stillbirth, or medical conditions related to
pregnancy or childbirth, to attend health care appointments or receive
health care treatment related to pregnancy, childbirth, or related
medical conditions; placement in the covered entity's light or modified
duty program or assignment to light duty or modified work; telework;
adjustments to allow an employee or applicant to work without increased
pain or increased risk to the employee's or applicant's health or the
health of the employee's or applicant's pregnancy due to the employee's
or applicant's known limitation; temporarily suspending one or more
essential functions of the position; providing reserved parking spaces
if the employee is otherwise entitled to use employer-provided parking;
and other similar accommodations for employees or applicants with known
limitations.
(3) The reasonable accommodation of leave includes, but is not
limited to:
(i) The ability to use paid leave (whether accrued, short-term
disability, or another employer benefit) or receive unpaid leave,
including, but not limited to, leave during pregnancy; to recover from
childbirth, miscarriage, or stillbirth; and to attend health care
appointments or receive health care treatments related to pregnancy,
childbirth, or related medical conditions;
(ii) The ability to use paid leave (accrued, short-term disability,
or another employer benefit) or unpaid leave for a known limitation
under the PWFA;
(iii) The ability to choose whether to use paid leave (accrued,
short-term disability or another employer benefit) or unpaid leave to
the extent that the covered entity allows employees using leave not
related to pregnancy, childbirth, or related medical conditions to
choose between the use of paid leave (accrued, short-term disability,
or another employer benefit) and unpaid leave; and
(iv) A covered entity's concerns about the length, frequency, or
unpredictable nature of leave requested as a reasonable accommodation
are questions of undue hardship.
(4) The provision of reasonable accommodations related to
lactation, including, but not limited to:
(i) Breaks, a space for lactation, and other related modifications
as required under the PUMP Act (Pub. L. 117-328, Div. KK, 29 U.S.C.
218d), if not already provided under the PUMP Act;
(ii) Whether the space for lactation is provided under the PUMP Act
or paragraph (i)(4)(i) of this section, accommodations related to
pumping, such as, but not limited to, ensuring that the area for
lactation is in reasonable proximity to the employee's usual work area;
that it is regularly cleaned; that it has electricity, appropriate
seating, and a surface sufficient to place a breast pump; and that it
is in reasonable proximity to a sink, running water, and a refrigerator
for storing milk.
(5) The temporary suspension of one or more essential function(s)
of the position in question, as defined in paragraph (g) of this
section, is a reasonable accommodation if an applicant or employee with
a known limitation is unable to perform one or more essential functions
with or without a reasonable accommodation
[[Page 54769]]
and the conditions in paragraph (f)(2) of this section are met.
(j) Undue hardship--
(1) In general. Undue hardship means, with respect to the provision
of an accommodation, significant difficulty or expense incurred by a
covered entity, when considered in light of the factors set forth in
paragraph (j)(2) of this section.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on a covered entity,
factors to be considered, with no one factor to be dispositive,
include:
(i) The nature and net cost of the accommodation needed under the
PWFA;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number
of persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the covered entity, the
overall size of the business of the covered entity with respect to the
number of its employees, and the number, type and location of its
facilities;
(iv) The type of operation or operations of the covered entity,
including the composition, structure and functions of the workforce of
such entity, and the geographic separateness and administrative or
fiscal relationship of the facility or facilities in question to the
covered entity; and
(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.
(3) If an employee or applicant with a known limitation under the
PWFA meets the definition of ``qualified employee'' under paragraph
(f)(2) of this section and needs one or more essential functions of the
relevant position to be temporarily suspended, the covered entity must
provide the accommodation unless doing so imposes an undue hardship
when considered in light of the factors provided in paragraphs
(j)(2)(i) through (v) of this section as well as the following
additional factors where they are relevant and with no one factor being
dispositive:
(i) The length of time that the employee or applicant will be
unable to perform the essential function(s);
(ii) Whether, through the factors listed in paragraph (f)(2)(iii)
of this section or otherwise, there is work for the employee or
applicant to accomplish;
(iii) The nature of the essential function(s), including its
frequency;
(iv) Whether the covered entity has provided other employees or
applicants in similar positions who are unable to perform the essential
function(s) of their position with temporary suspensions of essential
functions;
(v) If necessary, whether there are other employees, temporary
employees, or third parties who can perform or be hired to perform the
essential function(s); and
(vi) Whether the essential function(s) can be postponed or remain
unperformed for any length of time and, if so, for how long.
(4) Predictable assessments: Although a covered entity must assess
on a case-by-case basis whether a requested modification is a
reasonable accommodation that would cause undue hardship, the
individualized assessment of whether the modifications listed in
paragraphs (j)(4)(i) through (iv) of this section would cause undue
hardship will, in virtually all cases, result in a determination that
they are reasonable accommodations that will not impose an undue
hardship under the PWFA when they are requested as workplace
accommodations by an employee or applicant who is pregnant. Given the
simple and straightforward nature of these modifications, they will, as
a factual matter, virtually always be found to be reasonable
accommodations that do not impose significant difficulty or expense
(i.e., undue hardship). Therefore, with respect to these modifications,
the necessary individualized assessment should be particularly simple
and straightforward. It should easily be concluded that the following
modifications will virtually always be reasonable accommodations that
do not impose an undue hardship:
(i) Allowing an employee or applicant to carry water and drink as
needed during the workday;
(ii) Allowing an employee or applicant additional restroom breaks;
(iii) Allowing an employee or applicant whose work requires
standing to sit and whose work requires sitting to stand; and
(iv) Allowing an employee or applicant breaks as needed to eat and
drink.
(5) A covered entity may not establish that a reasonable
accommodation imposes an undue hardship based on a mere assumption or
speculation that other employees might seek a reasonable accommodation,
or even the same reasonable accommodation, in the future.
(k) Interactive process means an informal, interactive process
between the covered entity and the employee or applicant seeking an
accommodation under the PWFA. This process should identify the known
limitation and the change or adjustment at work that is needed, if
either of these are not clear from the request, and potential
reasonable accommodations. There are no rigid steps that must be
followed.
(l) Supporting documentation. (1) A covered entity that decides to
seek supporting documentation from a worker who seeks an accommodation
under the PWFA is limited to requiring documentation that is reasonable
under the circumstances for the covered entity to determine whether to
grant the accommodation. The following situations are examples of when
requiring supporting documentation is not reasonable under the
circumstances:
(i) When the known limitation and need for reasonable accommodation
are obvious and the employee confirms the obvious limitation and need
for reasonable accommodation through self-attestation;
(ii) When the employee or applicant already has provided the
covered entity with sufficient information to substantiate that the
employee or applicant has a known limitation and that a change or
adjustment at work is needed;
(iii) When the employee or applicant is pregnant and the reasonable
accommodation is one of those listed in paragraphs (j)(4)(i) through
(iv) of this section and the employee has provided a self-attestation;
or
(iv) When the covered entity requires documentation other than
self-attestation from the employee or applicant regarding lactation or
pumping.
(2) When requiring supporting documentation is reasonable under the
circumstances, the covered entity is limited to requiring reasonable
documentation. Reasonable documentation means documentation that is
sufficient to describe or confirm the physical or mental condition;
that it is related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions; and that a change or
adjustment at work is needed.
(3) A covered entity may require that documentation comes from the
appropriate health care provider in a particular situation, which may
include, but is not limited to, doctors, doulas, midwives,
psychologists, nurses, nurse practitioners, physical therapists,
lactation consultants, occupational therapists, vocational
rehabilitation specialists, therapists, and licensed mental health
providers. The covered entity may not require that the employee or
applicant seeking the accommodation be examined by a
[[Page 54770]]
health care provider selected by the covered entity.
(4) The rules protecting confidential medical information in the
Americans with Disabilities Act, 42 U.S.C. 12111 et seq., apply to
medical information received by a covered entity under the PWFA.
Sec. 1636.4 Prohibited practices.
(a) It is an unlawful employment practice for a covered entity not
to make reasonable accommodations to the known limitations related to
the pregnancy, childbirth, or related medical conditions of a qualified
employee or applicant, unless such covered entity can demonstrate that
the accommodation would impose an undue hardship on the operation of
the business of such covered entity.
(1) An unnecessary delay in responding to a reasonable
accommodation request may result in a violation of the PWFA, 42 U.S.C.
2000gg-1(1), even if the covered entity eventually provides the
reasonable accommodation. In determining whether there has been an
unnecessary delay, factors to be considered, with no one factor to be
dispositive, include:
(i) The reason for the delay;
(ii) The length of the delay;
(iii) How much the employee or applicant and the covered entity
each contributed to the delay;
(iv) Whether the covered entity was engaged in actions related to
the reasonable accommodation request during the delay;
(v) Whether the accommodation was simple or complex to provide.
There are certain accommodations, set forth in Sec. 1636.3(j)(4), that
are common and easy to provide. Delay in providing these accommodations
will virtually always result in a finding of unnecessary delay; and
(vi) Whether the covered entity offered the employee or applicant
an interim reasonable accommodation during the interactive process or
while waiting for the covered entity's response. If an interim
reasonable accommodation is offered, delay by the covered entity is
more likely to be excused. For the purposes of this factor, leave will
not be considered an appropriate interim reasonable accommodation if
there is another interim reasonable accommodation that would not cause
an undue hardship for the covered entity and would allow the employee
or applicant to continue to work, unless the employee or applicant
selects or requests leave as an interim accommodation.
(2) An employee or applicant with a known limitation under the PWFA
is not required to accept an accommodation. However, if such employee
or applicant rejects a reasonable accommodation that is necessary to
enable the employee or applicant to perform the essential functions of
the position held or desired or to apply for the position, and as a
result of that rejection, cannot perform the essential functions of the
position or cannot apply, the employee or applicant will not be
considered ``qualified.'' In this situation, the covered entity also
must consider whether the employee could be ``qualified'' under the
second part of the PWFA's definition, set forth at Sec. 1636.3(f)(2).
(3) A covered entity cannot justify the denial or delay of a
reasonable accommodation based on an employee or applicant failing to
provide supporting documentation, unless requiring the supporting
documentation is reasonable under the circumstances for the covered
entity to determine whether to provide the accommodation.
(4) The accommodation should provide the employee or applicant with
equal employment opportunity to attain the same level of performance,
or to enjoy the same level of benefits and privileges as are available
to the average similarly situated employee without a known limitation.
When choosing between accommodations that do not cause an undue
hardship, the covered entity must choose an option that provides the
employee or applicant equal employment opportunity.
(b) It is unlawful for a covered entity to require a qualified
employee or applicant affected by pregnancy, childbirth, or related
medical conditions to accept an accommodation other than any reasonable
accommodation arrived at through the interactive process referred to in
42 U.S.C. 2000gg(7) and described at Sec. 1636.3(k).
(c) It is unlawful for a covered entity to deny employment
opportunities to a qualified employee or applicant if such denial is
based on the need or potential need of the covered entity to make
reasonable accommodations to the known limitations related to the
pregnancy, childbirth or related medical conditions of the qualified
employee or applicant.
(d) It is unlawful for a covered entity:
(1) To require a qualified employee to take leave, whether paid or
unpaid, if another reasonable accommodation can be provided to the
known limitations related to the pregnancy, childbirth, or related
medical conditions of the qualified employee that does not result in an
undue hardship for the covered entity; but
(2) Nothing in this provision limits the provision of leave as a
reasonable accommodation if that is the reasonable accommodation
requested or selected by the employee, or if it is the only reasonable
accommodation that does not cause an undue hardship.
(e) It is unlawful for a covered entity:
(1) To take adverse action in terms, conditions, or privileges of
employment against a qualified employee, applicant, or former employee
on account of the employee, applicant, or former employee requesting or
using a reasonable accommodation to the known limitations related to
pregnancy, childbirth, or related medical conditions of the employee,
applicant, or former employee.
(2) Nothing in paragraph (e)(1) of this section limits the rights
available under 42 U.S.C. 2000gg-2(f) of the PWFA or Sec. 1636.5(f).
Sec. 1636.5 Remedies and enforcement.
(a) Employees covered by Title VII of the Civil Rights Act of
1964--(1) In general. The powers, remedies, and procedures provided in
sections 705, 706, 707, 709, 710, and 711 of the Civil Rights Act of
1964, 42 U.S.C. 2000e-4 et seq., to the Commission, the Attorney
General, or any person alleging a violation of Title VII of such Act,
42 U.S.C. 2000e et seq., shall be the powers, remedies, and procedures
this section provides to the Commission, the Attorney General, or any
person, respectively, alleging an unlawful employment practice in
violation of this section against an employee described in 42 U.S.C.
2000gg(3)(A), except as provided in paragraphs (a)(2) and (3) of this
section.
(2) Costs and fees. The powers, remedies, and procedures provided
in subsections (b) and (c) of section 722 of the Revised Statutes, 42
U.S.C. 1988, shall be the powers, remedies, and procedures this section
provides to the Commission, the Attorney General, or any person
alleging such practice.
(3) Damages. The powers, remedies, and procedures provided in
section 1977A of the Revised Statutes, 42 U.S.C. 1981a, including the
limitations contained in subsection (b)(3) of such section 1977A, shall
be the powers, remedies, and procedures this section provides to the
Commission, the Attorney General, or any person alleging such practice
(not an employment practice specifically excluded from coverage under
section 1977A(a)(1) of the Revised Statutes, 42 U.S.C. 1981a(a)(1)).
(b) Employees covered by Congressional Accountability Act of 1995--
(1) In general. The powers,
[[Page 54771]]
remedies, and procedures provided in the Congressional Accountability
Act of 1995, 2 U.S.C. 1301 et seq., for the purposes of addressing
allegations of violations of section 201(a)(1) of such Act, 2 U.S.C.
1311(a)(1), shall be the powers, remedies, and procedures this section
provides to address an allegation of an unlawful employment practice in
violation of this section against an employee described in 42 U.S.C.
2000gg(3)(B), except as provided in paragraphs (b)(2) and (3) of this
section.
(2) Costs and fees. The powers, remedies, and procedures provided
in subsections (b) and (c) of section 722 of the Revised Statutes, 42
U.S.C. 1988, for the purposes of addressing allegations of such a
violation shall be the powers, remedies, and procedures this section
provides to address allegations of such practice.
(3) Damages. The powers, remedies, and procedures provided in
section 1977A of the Revised Statutes, 42 U.S.C. 1981a, including the
limitations contained in subsection (b)(3) of such section 1977A, for
purposes of addressing allegations of such a violation, shall be the
powers, remedies, and procedures this section provides to address any
allegation of such practice (not an employment practice specifically
excluded from coverage under section 1977A(a)(1) of the Revised
Statutes, 42 U.S.C. 1981a(a)(1)).
(c) Employees covered by Chapter 5 of Title 3, United States Code--
(1) In general. The powers, remedies, and procedures provided in
chapter 5 of title 3, United States Code, to the President, the
Commission, the Merit Systems Protection Board, or any person alleging
a violation of section 411(a)(1) of such title shall be the powers,
remedies, and procedures this section provides to the President, the
Commission, the Board, or any person, respectively, alleging an
unlawful employment practice in violation of this section against an
employee described in 42 U.S.C. 2000gg(3)(C), except as provided in
paragraphs (c)(2) and (3) of this section.
(2) Costs and fees. The powers, remedies, and procedures provided
in subsections (b) and (c) of section 722 of the Revised Statutes, 42
U.S.C. 1988, shall be the powers, remedies, and procedures this section
provides to the President, the Commission, the Board, or any person
alleging such practice.
(3) Damages. The powers, remedies, and procedures provided in
section 1977A of the Revised Statutes, 42 U.S.C. 1981a, including the
limitations contained in subsection (b)(3) of such section 1977A, shall
be the powers, remedies, and procedures this section provides to the
President, the Commission, the Board, or any person alleging such
practice (not an employment practice specifically excluded from
coverage under section 1977A(a)(1) of the Revised Statutes, 42 U.S.C.
1981a(a)(1)).
(d) Employees covered by Government Employee Rights Act of 1991--
(1) In general. The powers, remedies, and procedures provided in
sections 302 and 304 of the Government Employee Rights Act of 1991, 42
U.S.C. 2000e-16b, 2000e-16c, to the Commission or any person alleging a
violation of section 302(a)(1) of such Act, 42 U.S.C. 2000e-16b(a)(1),
shall be the powers, remedies, and procedures this section provides to
the Commission or any person, respectively, alleging an unlawful
employment practice in violation of this section against an employee
described in 42 U.S.C. 2000gg(3)(D), except as provided in paragraphs
(d)(2) and (3) of this section.
(2) Costs and fees. The powers, remedies, and procedures provided
in subsections (b) and (c) of section 722 of the Revised Statutes, 42
U.S.C. 1988, shall be the powers, remedies, and procedures this section
provides to the Commission or any person alleging such practice.
(3) Damages. The powers, remedies, and procedures provided in
section 1977A of the Revised Statutes, 42 U.S.C. 1981a, including the
limitations contained in subsection (b)(3) of such section 1977A, shall
be the powers, remedies, and procedures this section provides to the
Commission or any person alleging such practice (not an employment
practice specifically excluded from coverage under section 1977A(a)(1)
of the Revised Statutes, 42 U.S.C. 1981a(a)(1)).
(e) Employees covered by Section 717 of the Civil Rights Act of
1964--(1) In general. The powers, remedies, and procedures provided in
section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, to the
Commission, the Attorney General, the Librarian of Congress, or any
person alleging a violation of that section shall be the powers,
remedies, and procedures this section provides to the Commission, the
Attorney General, the Librarian of Congress, or any person,
respectively, alleging an unlawful employment practice in violation of
this chapter against an employee described in 42 U.S.C. 2000gg(3)(E),
except as provided in paragraphs (e)(2) and (3) of this section.
(2) Costs and fees. The powers, remedies, and procedures provided
in subsections (b) and (c) of section 722 of the Revised Statutes, 42
U.S.C. 1988, shall be the powers, remedies, and procedures this section
provides to the Commission, the Attorney General, the Librarian of
Congress, or any person alleging such practice.
(3) Damages. The powers, remedies, and procedures provided in
section 1977A of the Revised Statutes, 42 U.S.C. 1981a, including the
limitations contained in subsection (b)(3) of such section 1977A, shall
be the powers, remedies, and procedures this section provides to the
Commission, the Attorney General, the Librarian of Congress, or any
person alleging such practice (not an employment practice specifically
excluded from coverage under section 1977A(a)(1) of the Revised
Statutes, 42 U.S.C. 1981a(a)(1)).
(f) Prohibition against retaliation--(1) In general. No person
shall discriminate against any employee, applicant, or former employee
because such individual has opposed any act or practice made unlawful
by the PWFA or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under the PWFA.
(i) An employee, applicant, or former employee need not be a
qualified employee, applicant, or former employee with a known
limitation to bring an action under this paragraph (f)(1).
(ii) A request for reasonable accommodation for a known limitation
under the PWFA constitutes protected activity under this paragraph
(f)(1).
(iii) An employee, applicant, or former employee does not actually
have to be deterred from exercising or enjoying rights under the PWFA
in order for the retaliation to be actionable.
(iv) A covered entity requiring supporting documentation when it is
not reasonable under the circumstances for the covered entity to
determine whether to provide the accommodation is a violation of this
paragraph (f)(1).
(v) When an employee or applicant (or a representative of an
employee or applicant) provides sufficient information or documentation
to describe or confirm the known limitation and to substantiate the
need for a reasonable accommodation, continued efforts by the covered
entity to require that the employee or applicant (or the representative
of such individual) provide more information or documentation is a
violation of this paragraph, unless the covered entity has a good faith
belief that the submitted information or documentation is insufficient.
(2) Prohibition against coercion. It is unlawful to coerce,
intimidate, threaten, harass, or interfere with any individual in the
exercise or enjoyment of, or on
[[Page 54772]]
account of such individual having exercised or enjoyed, or because that
individual aided or encouraged any other individual in the exercise or
enjoyment of, any right granted or protected by the PWFA.
(i) An individual need not meet the definition of a ``qualified
employee'' or have a ``known limitation'' under the PWFA to bring an
action under this paragraph (f)(2).
(ii) A request for reasonable accommodation for a known limitation
under the PWFA constitutes protected activity under this paragraph
(f)(2).
(iii) An individual does not actually have to be deterred from
exercising or enjoying rights under the PWFA for the coercion,
intimidation, threats, harassment, or interference to be actionable.
(iv) A covered entity requiring supporting documentation when it is
not reasonable under the circumstances for the covered entity to
determine whether to provide the accommodation is a violation of this
paragraph (f)(2).
(v) When an employee or applicant (or a representative of an
employee or applicant) provides sufficient information or documentation
to describe or confirm the known limitation and to substantiate the
need for a reasonable accommodation, continued efforts by the covered
entity to require that the employee or applicant (or a representative
of such individual) provide more information or documentation is a
violation of this paragraph, unless the covered entity has a good faith
belief that the submitted information or documentation is insufficient.
(3) Remedy. The remedies and procedures otherwise provided for
under this section shall be available to aggrieved individuals with
respect to violations of this section regarding retaliation, coercion,
interference, or intimidation, threats, or harassment.
(g) Limitation on monetary damages. Notwithstanding paragraphs
(a)(3), (b)(3), (c)(3), (d)(3), and (e)(3) of this section, if an
unlawful employment practice involves the provision of a reasonable
accommodation pursuant to this section, damages may not be awarded
under section 1977A of the Revised Statutes, 42 U.S.C. 1981a, if the
covered entity demonstrates good faith efforts, in consultation with
the employee or applicant with known limitations related to, affected
by, or arising out of pregnancy, childbirth, or related medical
conditions who has informed the covered entity that accommodation is
needed, to identify and make a reasonable accommodation that would
provide such employee or applicant with an equally effective
opportunity and would not cause an undue hardship on the operation of
the covered entity.
Sec. 1636.6 Waiver of State immunity.
A State shall not be immune under the 11th Amendment to the
Constitution from an action in a Federal or State court of competent
jurisdiction for a violation of the PWFA. In any action against a State
for a violation of the PWFA, remedies (including remedies both at law
and in equity) are available for such a violation to the same extent
such remedies are available for such a violation in an action against
any public or private entity other than a State.
Sec. 1636.7 Relationship to other laws.
(a) In general. (1) The PWFA and this regulation do not invalidate
or limit the powers, remedies, and procedures under any Federal law,
State law, or the law of any political subdivision of any State or
jurisdiction that provides greater or equal protection for individuals
affected by pregnancy, childbirth, or related medical conditions.
(2) The PWFA and this regulation do not require an employer-
sponsored health plan to pay for or cover any particular item,
procedure, or treatment or affect any right or remedy available under
any other Federal, State, or local law with respect to any such payment
or coverage requirement.
(b) Rule of construction. This statute is subject to the
applicability to religious employment set forth in section 702(a) of
the Civil Rights Act of 1964, 42 U.S.C. 2000e-1(a).
(1) Nothing in this provision limits the rights under the U.S.
Constitution of a covered entity.
(2) Nothing in 42 U.S.C. 2000gg-5(b) of the PWFA or this regulation
should be interpreted to limit an employee's, applicant's, or former
employee's rights under other civil rights statutes.
Sec. 1636.8 Severability.
(a) If any provision of the PWFA or the application of that
provision to particular persons or circumstances is held invalid or
found to be unconstitutional, the remainder of the statute and the
application of that provision to other persons or circumstances shall
not be affected.
(b) If any provision of the regulation that uses the same language
as in the statute or the application of that provision to particular
persons or circumstances is held invalid or found to be
unconstitutional, the remainder of the regulation and the application
of that provision to other persons or circumstances shall not be
affected.
(c) If any provision of the regulation that provides additional
guidance to carry out the PWFA, including examples of reasonable
accommodations, or the application of that provision to particular
persons or circumstances is held invalid or found to be
unconstitutional, the remainder of the regulation and the application
of that provision to other persons or circumstances shall not be
affected.
Appendix A to Part 1636--Interpretive Guidance on the Pregnant Workers
Fairness Act
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 prohibits a covered entity from (1) denying a qualified
employee or applicant with a known limitation a reasonable
accommodation, absent undue hardship; (2) requiring a qualified
employee or applicant to accept an accommodation other than one
arrived at through the interactive process; (3) denying an
employment opportunity to a qualified employee or applicant if the
denial is based on the employer's need or potential need to make a
reasonable accommodation for the known limitation of the employee or
applicant; (4) requiring a qualified employee with a known
limitation to take leave, either paid or unpaid, if another
effective reasonable accommodation exists that does not cause an
undue hardship; and (5) taking an adverse action in terms,
conditions, or privileges of employment against a qualified
employee, applicant, or former employee on account of the employee,
applicant, or former employee requesting or using a reasonable
accommodation for a known limitation. The PWFA also prohibits
retaliation against applicants, employees, or former employees for
opposing unlawful discrimination, making a charge, testifying,
assisting, or participating in any manner in a PWFA investigation,
hearing, or proceeding. Finally, the PWFA prohibits coercing,
intimidating, threatening, or interfering with any individual
related to the exercise or enjoyment of any right, including aiding
or encouraging another individual in such exercise or enjoyment,
under the statute.
[[Page 54773]]
The U.S. Equal Employment Opportunity Commission (``the
Commission'' or ``the EEOC'') is responsible for enforcing the PWFA
with respect to employees covered by Title VII of the Civil Rights
Act of 1964 and employees covered by the Government Employee Rights
Act of 1991 (GERA). Employees covered by section 706 of Title VII
may file charges with the EEOC and the EEOC will investigate them
using the same process as set out in Title VII. Similarly, employees
covered by section 717 of Title VII may file complaints with the
relevant Federal agency which will investigate them, and the EEOC
will process appeals using the same process as set out in Title VII
for Federal employees.
This Interpretive Guidance addresses the major provisions of the
PWFA and its regulation and explains the major concepts pertaining
to non-discrimination with respect to reasonable accommodations for
known limitations related to pregnancy, childbirth, or related
medical conditions under the statute. 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.
Section 1636.2 Definitions--General
42 U.S.C. 2000gg(3) uses ``employee (including an applicant)''
in its definition of ``employee.'' Because the PWFA relies on Title
VII for its definition of ``employee,'' the rule clarifies that the
term also includes ``former employee,'' where relevant.\2\ The
regulation, and this appendix use the term ``covered entity'' and
the term ``employer'' interchangeably. The regulation and this
appendix use the term ``employee or applicant'' and ``employee'';
where appropriate, ``employee'' or ``employee or applicant'' means
``employee, applicant, or former employee.''
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\2\ 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), http://www.eeoc.gov/policy/docs/threshold.html#2-III-A. This appendix uses the term ``worker''
interchangeably with ``employee or applicant.'' For purposes of the
PWFA, the term ``worker'' does not apply to independent contractors.
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Section 1636.3 Definitions Specific to PWFA
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.\3\ 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 \4\ 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.\5\
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\3\ The regulation and the 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.
\4\ EEOC, Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the ADA, at text after n. 49 (2002), http://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada [hereinafter Enforcement
Guidance on Reasonable Accommodation].
\5\ 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) https://www.womenshealth.gov/a-z-topics/prenatal-care;
Am. Coll. of Obstetricians & Gynecologists, Comm. Opinion No. 736,
Optimizing Post-Partum Care (stating the importance of regular post-
partum care) (2021) (https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-postpartum-care) & Opinion No. 826, Protecting and Expanding Medicaid to
Improve Women's Health (encouraging the expansion of Medicaid to
improve post-partum care) (2021) (https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2021/06/protecting-and-expanding-medicaid-to-improve-womens-health).
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The general principle informing the 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.\6\ 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.\7\ 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.\8\ 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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\6\ 42 U.S.C. 2000gg(4).
\7\ 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).
\8\ Enforcement Guidance on Reasonable Accommodation, supra note
4, 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 Paycheck Fairness Act; Pregnant Workers Fairness
Act; Workplace Violence Prevention for Health Care and Social
Service Workers Act 54:46 (2021), https://www.youtube.com/watch?v=p6Ie2S9sTxs, at 54:46 (statement of Rep. Kathy E. Manning)
(goal of the PWFA is to 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
[[Page 54774]]
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.
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.\9\ Because Congress chose to write the PWFA using the same
language as Title VII, in the rule the Commission gives the term
``pregnancy, childbirth, or related medical conditions'' the same
meaning under the PWFA as under Title VII.\10\
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\9\ 42 U.S.C. 2000e(k).
\10\ 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 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 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.\11\ The
[[Page 54775]]
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.
---------------------------------------------------------------------------
\11\ EEOC, Enforcement Guidance on Pregnancy Discrimination and
Related Issues I.A. (2015), https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues
[hereinafter Enforcement Guidance on Pregnancy Discrimination]
(``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 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), https://www.eeoc.gov/commission-decision-coverage-contraception (``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. 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 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.\12\ Thus, the 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.
---------------------------------------------------------------------------
\12\ Enforcement Guidance on Reasonable Accommodation, supra
note 4, Question 2.
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1636.3(d) Communicated to the Employer
Paragraph (d) of this section of the 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.
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.\13\
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.\14\ 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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\13\ Id. at Question 3.
\14\ Id.
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Paragraph (d)(3) of this section of the 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
[[Page 54776]]
a change needed at work (time off). This is a request for a
reasonable accommodation under the PWFA.\15\
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\15\ 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), https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act [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 rule explains that, as with the ADA, the
ameliorative, or positive, effects of mitigating 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.\16\
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\16\ 29 CFR 1630.2(j)(1)(vi), (j)(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.\17\
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\17\ 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).
---------------------------------------------------------------------------
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.\18\
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\18\ 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 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.'' \19\ 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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\19\ U.S. 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 4,
at text accompanying nn.8-9 (citing the definition from Barnett).
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Determining ``Qualified'' for the Reasonable Accommodation of Leave
When determining whether an employee who needs leave \20\ 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.\21\ 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.\22\
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\20\ 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 regulation, and the 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.
\21\ 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).
\22\ 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 15, 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.\23\
---------------------------------------------------------------------------
\23\ 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
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.
[[Page 54777]]
Launa becomes pregnant and lets her supervisor know that she has a
lifting restriction of 20 pounds because of her pregnancy.
3. 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.
4. 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).\24\
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\24\ 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.
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1636.3(f)(2)(i) Temporary
The rule defines the term ``temporary'' to mean that the need to
suspend one or more essential functions is ``lasting for a limited
time,\25\ 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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\25\ Temporary, Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/temporary (``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 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.\26\ 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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\26\ 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.\27\ 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.\28\ Likely for similar
reasons, thirty-five States and the District of Columbia provide
twelve months of comprehensive Medicaid coverage after delivery,
rather than sixty days.\29\ 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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\27\ 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), https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html.
\28\ 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.
\29\ 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) https://www.medicaid.gov/medicaid/quality-of-care/downloads/image-maternity-care-expansion.png.
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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,\30\ the determination of ``in the
near future'' shall be made when the employee asks for each
accommodation that requires the suspension of one or more essential
functions. Thus, a
[[Page 54778]]
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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\30\ 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.\31\
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\31\ For additional information on how leave should be addressed
under the PWFA, see supra With or Without Reasonable Accommodation--
Leave and infra 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.
1636.3(f)(2)(iii) Can Be Reasonably Accommodated
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.\32\ 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.\33\
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\32\ 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.'') ``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), https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada
[hereinafter Enforcement Guidance: Workers' Compensation]. In the
context of the 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.
\33\ Enforcement Guidance on Reasonable Accommodation, supra
note 4, at Question 19.
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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.
3. 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.
4. 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.
3. 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.
4. Qualified: Lydia needs the temporary suspension of an
essential function.
d. Lydia's inability to perform the essential function is
temporary.
e. 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.
f. 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
[[Page 54779]]
reasonable accommodation) absent undue hardship.
1636.3(g) Essential Functions
The 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.'' \34\ 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.\35\
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\34\ 29 CFR 1630.2(n).
\35\ 29 CFR 1630.2(n); 29 CFR part 1630 app. 1630.2(n).
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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.'' \36\ 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.''
\37\ 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.\38\
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\36\ 29 CFR part 1630 app. 1630.9.
\37\ See supra note 19.
\38\ Enforcement Guidance on Reasonable Accommodation, supra
note 4, 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 as under the ADA.\39\ 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.\40\ 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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\39\ 42 U.S.C. 2000gg(7).
\40\ 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 rule takes the
definition of ``reasonable accommodation'' provided in the
regulations implementing the ADA \41\ and makes five additions to
apply it in the context of the PWFA.
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\41\ 29 CFR 1630.2(o).
---------------------------------------------------------------------------
First, the rule replaces references to ``individual with a
disability'' and similar terms with ``employee with a known
limitation'' and similar terms.\42\
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\42\ The 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 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.
---------------------------------------------------------------------------
Second, the 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 rule illustrates the implications,
meaning, and application of this requirement.
Third, the 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 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 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 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).\43\ 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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\43\ 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.
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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
[[Page 54780]]
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 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.\44\ 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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\44\ See 29 CFR 1630.2(o)(2)(ii); 29 CFR part 1630 app.
1630.2(o); Enforcement Guidance on Reasonable Accommodation, supra
note 4, 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.\45\ 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).\46\
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\45\ See Technical Assistance on Employer-Provided Leave, supra
note 15, at text above Example 4.
\46\ 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 rule also provides that leave to recover from childbirth,
miscarriage, stillbirth, or other related conditions is a potential
reasonable accommodation (absent undue hardship).\47\ The 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.\48\ 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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\47\ 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'').
\48\ 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.\49\ 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.\50\ 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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\49\ Enforcement Guidance on Reasonable Accommodation, supra
note 4, at text accompanying n.14.
\50\ 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.\51\ Likewise, an employer must continue an employee's
health insurance benefits during their leave period
[[Page 54781]]
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 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).\52\
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\51\ 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.
\52\ 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.\53\ It would also render the
accommodation ineffective, thus making the covered entity liable for
failing to provide a reasonable accommodation.\54\ 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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\53\ Id. at Question 19; see also 2000gg-1(5), 2000gg-2(f) and
the accompanying regulations.
\54\ 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.'' \55\
---------------------------------------------------------------------------
\55\ 29 CFR part 1630 app. 1630.9.
---------------------------------------------------------------------------
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.\56\ 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.\57\
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\56\ Id.
\57\ Id.
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Interim Reasonable Accommodation
Providing an interim reasonable accommodation is a best practice
under the PWFA in certain circumstances.\58\ 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 regulation.
---------------------------------------------------------------------------
\58\ 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), http://www.eeoc.gov/laws/guidance/final-report-best-practices-employment-people-disabilities-state-government [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 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 Commission notes that an employee or applicant may
need more than one of these accommodations at the same time or as a
pregnancy progresses.
Frequent breaks. The EEOC has long construed the ADA to
require additional breaks as a reasonable accommodation, absent
undue hardship.\59\ 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.\60\
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\59\ Enforcement Guidance on Reasonable Accommodation, supra
note 4, 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.).
\60\ 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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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.\61\ 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.
---------------------------------------------------------------------------
\61\ See Enforcement Guidance on Reasonable Accommodation, supra
note 4, at General Principles, Example B; see also H.R. Rep. No.
117-27, pt. 1, at 11, 22, 29.
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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
[[Page 54782]]
of any other employee benefit) or providing additional unpaid leave
is a potential reasonable accommodation under the ADA.\62\
Additionally, the Appendix recognizes that leave for medical
treatment can be a reasonable accommodation.\63\ 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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\62\ 29 CFR part 1630 app. 1630.2(o); see also Technical
Assistance on Employer-Provided Leave, supra note 15. 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.
\63\ 29 CFR part 1630 app. 1630.2(o).
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Telework. Telework or ``work from home'' has been
recognized by the EEOC as a potential reasonable accommodation.\64\
Telework could be used to accommodate, for example, a period of bed
rest or a mobility impairment.
---------------------------------------------------------------------------
\64\ See, e.g., Enforcement Guidance on Reasonable
Accommodation, supra note 4, at Question 34.
---------------------------------------------------------------------------
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.
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.\65\
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\65\ EEOC, Enforcement Guidance: Workers' Compensation, supra
note 32, 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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Making existing facilities accessible or modifying the
work environment.\66\ 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 regulation, this also may include
modifications of the work environment to allow an employee to pump
breast milk at work.\67\
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\66\ 29 CFR 1630.2(o)(1)(ii); (o)(2)(i).
\67\ 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), https://www.dol.gov/agencies/whd/pump-at-work.2023), https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers. 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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Job restructuring.\68\ 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.
---------------------------------------------------------------------------
\68\ 29 CFR 1630.2 (o)(2)(ii).
---------------------------------------------------------------------------
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.
Acquiring or modifying equipment, uniforms, or
devices.\69\ 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.
---------------------------------------------------------------------------
\69\ Id.
---------------------------------------------------------------------------
Adjusting or modifying examinations or policies.\70\
Examples of reasonable accommodations include 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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\70\ Id.
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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.
4. 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.
5. Qualified: Gabriela can do the billing work with the
reasonable accommodation of telework.
6. 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.
4. 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.
5. 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.
6. 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
[[Page 54783]]
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.
4. 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.
5. Qualified: Mei could perform the essential functions of her
position with the reasonable accommodation of a dolly.
6. 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.
4. 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.
5. Qualified: Ava is qualified with the reasonable accommodation
of appropriate gear.
6. 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.
4. 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.
5. 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.
6. 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.
4. Known Limitation: Rory has a known limitation related to
pregnancy, childbirth, or a related medical condition.
5. 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.
6. 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.
4. 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 pregnancy; Tallah
needs an adjustment or change at work; Tallah has communicated this
information to the employer.
5. Qualified: After the reasonable accommodation of leave,
Tallah will be able to do the essential functions of the position
with or without accommodation.
6. 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.
4. 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.
5. Qualified: Margot can do her job with the reasonable
accommodation of leave to attend health care appointments.
6. 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.
4. 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.
5. Qualified: After the reasonable accommodation of leave, Sofia
will be able to do the essential functions of the position.
6. 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.
4. 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.
5. Qualified: Taylor can do the essential functions of the job
with a reasonable accommodation of time off to attend the therapy
appointments.
6. 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.
4. Known limitation: Claudine needs health care related to her
pregnancy;
[[Page 54784]]
Claudine needs an adjustment or change at work; Claudine has
communicated that information to the employer.
5. 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.
6. 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.
4. 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.
5. 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.
6. 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.
4. 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.
5. 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.
6. 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.
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 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
rule then, at (j)(2) of this paragraph, outlines some factors to be
considered when determining if undue hardship exists.\71\
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\71\ 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.\72\ 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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\72\ Enforcement Guidance on Reasonable Accommodations, supra
note 4, at text after n.116.
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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
[[Page 54785]]
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.\73\
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\73\ 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 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 Sec.
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 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 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 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.\74\ 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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\74\ 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.\75\
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\75\ 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 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.\76\
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
[[Page 54786]]
different rules regarding documentation may apply.\77\
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\76\ See H.R. Rep.117-27, pt. 1, at 11, 22, 29, 113; Fighting
for Fairness: Examining Legislation to Confront Workplace
Discrimination, Joint Hearing Before the Subcomm. on Civ. Rts. and
Hum. Servs. & the Subcomm. on Workforce Prots. of the H. Comm. on
Educ. and Lab., 117th Cong. 4 (2021) (statement of Rep. Suzanne
Bonamici); 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. and Lab., 116th Cong. 7 (2019)
[hereinafter Long Over Due] (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).
\77\ 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
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.
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 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 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.\78\ 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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\78\ Enforcement Guidance on Reasonable Accommodation, supra
note 4, 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 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.\79\ The rule also notes that there are no
rigid steps that must be followed when engaging in the interactive
process under the PWFA. The regulation makes the following
adjustments to the definition of interactive process from the ADA in
order to apply it to the PWFA.
---------------------------------------------------------------------------
\79\ 29 CFR 1630.2(o)(3).
---------------------------------------------------------------------------
First, the definition replaces references to ``individual with
disability'' and similar terms with ``employee with known
limitations'' and similar terms.
Second, the 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.\80\ 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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\80\ 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.\81\ 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.\82\
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\81\ 29 CFR part 1630 app. 1630.9.
\82\ Enforcement Guidance on Reasonable Accommodation, supra
note 4, 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
[[Page 54787]]
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.\83\
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\83\ 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 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 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
accommodation, nor the covered entity, may be able to readily
identify an appropriate accommodation. For example, an applicant
needing an accommodation may not know enough about the equipment
used by the covered entity or the exact nature of the work site to
suggest an appropriate accommodation. Likewise, the covered entity
may not know enough about the employee's known limitation and its
effect on the performance of the job to suggest an appropriate
accommodation. In these situations, the steps above may be helpful.
In addition, parties may consult outside resources such State or
local entities, non-profit organizations, or the Job Accommodation
Network (JAN) for ideas regarding potential reasonable
accommodations.\84\
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\84\ The Job Accommodation Network (JAN) provides free
assistance regarding workplace accommodation issues. See generally
Job Accommodation Network, https://askjan.org/ (last visited July
28, 2023).
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Failure To Engage in Interactive Process
Failing to engage in the interactive process, in and of itself,
is not a violation of the PWFA just as it is not a violation of the
ADA. However, a covered entity's failure to initiate or participate
in the interactive process with the employee or applicant after
receiving a request for reasonable accommodation could result in
liability if the employee or applicant does not receive a reasonable
accommodation even though one is available that would not have posed
an undue hardship.\85\ Relatedly, an employee's unilateral
withdrawal from or refusal to participate in the interactive process
can constitute sufficient grounds for denying the reasonable
accommodation.
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\85\ Enforcement Guidance on Reasonable Accommodation, supra
note 4, at Question 10.
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1636.3(l) Supporting Documentation
In determining when and what types of documentation a covered
entity may request of an employee or applicant to support their
request for a reasonable accommodation, the Commission is guided by
existing rules under the ADA, differences between the relevant
statutory provisions of the ADA and the PWFA, and the recognition
that accommodations under the PWFA may be small, temporary
modifications that may not always lend themselves to medical
documentation.
First, and most importantly, a covered entity is not required to
seek supporting documentation from a worker who seeks an
accommodation under the PWFA. For example, under the ADA, an
employer may simply discuss with the employee or applicant the
nature of the limitation and the need for an accommodation; \86\ the
same is true under the PWFA, and this approach is entirely
consistent with the PWFA's emphasis on the importance of the
interactive process as described in Sec. 1636.3(k).
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\86\ Id. at Question 6.
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Additionally, the Commission notes that pregnant workers may
experience limitations and, therefore, require accommodations,
before they have had any medical appointments. For example, some
workers may experience morning sickness and nausea early in their
pregnancies and need accommodations such as later start times,
breaks, or telework.
The Commission further recognizes that it may be difficult for a
pregnant employee to obtain an immediate appointment with a health
care provider early in a pregnancy. For example, according to one
study, almost a quarter of women did not receive prenatal care
during their first trimester, and 12% of births take place in
counties with limited or no access to maternity care.\87\ Further,
even for those who have access to medical care, known limitations
may develop between scheduled medical appointments, such that
requiring documentation in those situations would increase the cost
to the worker and may require them to take additional leave in order
to obtain the documentation. Therefore, consistent with the purposes
of the PWFA, the Commission encourages employers who choose to
require documentation, when that is permitted under this regulation,
to grant interim accommodations as a best practice if an employee
indicates that they have tried to obtain documentation but there is
a delay in obtaining it, and the documentation will be provided at a
later date. For example, if a pregnant employee requests an
accommodation for a pregnancy-related limitation in lifting, which
may involve the temporary suspension of an essential function, but
the employee will not be able to provide a note from a health care
practitioner for several weeks, the employer should consider
providing an interim reasonable accommodation.\88\
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\87\ Medical care often is not available or immediately obtained
early in a pregnancy. See, e.g., Joyce A. Martin et al., Ctrs. for
Disease Control, Births in the United States, 2019 2 (2020), https://www.cdc.gov/nchs/data/databriefs/db387-H.pdf (indicating that in
2019, almost 23% of women who gave birth did not receive prenatal
care during the first trimester); Christina Brigance et al., March
of Dimes, Nowhere to Go: Maternity Care Deserts Across the U.S. 4
(2022), https://www.marchofdimes.org/research/maternity-care-deserts-report.aspx (reporting that approximately 12 percent of
births in the United States occur in counties with limited or no
access to maternity care); American Pregnancy Association, Your
First Prenatal Visit, https://americanpregnancy.org/healthy-pregnancy/planning/first-prenatal-visit/ (last visited Apr. 3, 2023)
(stating that the first prenatal visit for individuals who did not
meet with their health care provider pre-pregnancy is generally
around 8 weeks after their last menstrual period); University of
Utah Health, Pregnancy--First Trimester, Weeks 1-13, https://healthcare.utah.edu/womenshealth/pregnancy-birth/1st-trimester (last
visited Apr. 3, 2023) (stating that doctors recommend scheduling the
first obstetric appointment between the 8th and 10th week of
pregnancy); Boston Medical Center, Newly Pregnant?, https://www.bmc.org/newly-pregnant (last visited Apr. 3, 2023) (stating that
the first prenatal appointment will be scheduled between the 8th and
12th weeks of pregnancy).
\88\ See Best Practices State Government, supra note 58. See
also infra discussion on Interim Reasonable Accommodations.
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If a covered entity decides to require supporting documentation,
it is only permitted to do so under the rule if it is reasonable to
require documentation under the circumstances for the covered entity
to determine whether to grant the accommodation. When requiring
documentation is reasonable, the employer is also limited to
requiring documentation that itself is reasonable. The preamble,
rule, and appendix set out examples of when it would not be
reasonable for the employer to require documentation. The rule also
defines ``reasonable documentation'' as documentation that describes
or confirms (1) the physical or mental condition; (2) that it is
related to, affected by, or arising out of pregnancy, childbirth, or
related medical conditions; and (3) that a change or adjustment at
work is needed for that reason.
As explained below, and set forth at Sec. 1636.4(a)(3), an
employer may not defend the denial of an accommodation under 42
U.S.C. 2000gg-1(1) based on the lack of documentation if its request
for documentation does not comport with the rule. In these
situations, the worker will have met the requirements of Sec.
1636.3(d)(3), and the employer will have sufficient information
[[Page 54788]]
regarding the known limitation and the need for accommodation.
Further, requests for documentation that violate the rule may be a
violation of the prohibition on retaliation and coercion in 42
U.S.C. 2000gg-2(f), as set forth in Sec. Sec. 1636.5(f)(1)(iv), (v)
and (f)(2)(iv), (v) because they may deter workers from seeking
accommodations.
1636.3(l)(1) Reasonable To Require Documentation Under the
Circumstances
Under the rule, a covered entity may require documentation only
if it is reasonable to do so under the circumstances for the covered
entity to decide whether to grant the accommodation. The regulation
provides several examples of when it would not be reasonable for the
employer to require documentation.
First, it is not reasonable for the employer to require
documentation when both the limitation and the need for reasonable
accommodation are obvious.\89\ For example, when an obviously
pregnant \90\ worker states or confirms they are pregnant and asks
for a different size uniform or related safety gear, both the
limitation and the need for the accommodation are obvious, and
``known'' under the statute, and the employer may not require
supporting documentation. If the pregnancy is obvious, and the
worker states or confirms that they are pregnant, but the limitation
related to the pregnancy or parameters of a potential accommodation
are not, the employer may only request documentation relevant to the
accommodation. For example, if a worker who is obviously pregnant,
states or confirms that they are pregnant, and asks to avoid lifting
heavy objects, it may be reasonable for the employer to request
documentation about the limitation such as the extent of the lifting
restriction and its expected duration, but not about the pregnancy
itself. Similarly, if an obviously pregnant employee requests the
reasonable accommodation of leave related to childbirth and recovery
and states or confirms that they are pregnant it may be reasonable
for the employer to require documentation regarding the amount of
time the worker anticipates needing to recover from childbirth, but
not reasonable to require documentation of the pregnancy itself.
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\89\ This is similar to the ADA under which requesting
documentation when the disability and the need for the accommodation
are obvious or otherwise already known would violate the prohibition
on disability-related inquires without a business justification.
Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees Under the ADA, Question 5 (2000), http://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees [hereinafter
Enforcement Guidance on Disability-Related Inquires].
\90\ Early or initial physical indications of pregnancy may not
be sufficient to make it obvious to an employer that an employee is
pregnant.
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Second, when the employee or applicant has already provided the
employer with sufficient information to substantiate that the worker
has a known limitation and needs a change or adjustment at work, it
is not reasonable for the employer to require documentation. If a
worker has already provided documentation stating that because of
their recent cesarean section, they should not lift over 20 pounds
for two months, the employer may not require further documentation
during those two months because the employee has already provided
the employer with sufficient information to substantiate that they
have a limitation and need a change at work.
A third example of when it is not reasonable for an employer to
require documentation is when a worker at any time during their
pregnancy states or confirms that they are pregnant and seeks one of
the following accommodations: (1) carrying water and drinking, as
needed; (2) taking additional restroom breaks; (3) sitting, for
those whose work requires standing, and standing, for those whose
work requires sitting; and (4) breaks, as needed, to eat and drink.
It is not reasonable to require documentation, beyond self-
attestation, when a worker is pregnant and seeks one of the four
listed modifications because these are a small set of commonly
sought accommodations that are widely known to be needed during an
uncomplicated pregnancy and where documentation would not be easily
obtainable or necessary. As noted above, particularly early in
pregnancy, employees and applicants are less likely to have sought
or been able to obtain an appointment with a health care provider
for their pregnancy. Further, they may not be able to obtain an
appointment with a health care provider repeatedly on short notice
for every limitation, as each becomes apparent. The Commission notes
that this position is consistent with the overarching goal of the
PWFA to assist workers affected by pregnancy to remain on the job by
providing them with simple accommodations quickly.
A fourth example of when it is not reasonable to require
documentation is when the limitation for which an accommodation is
needed involves lactation. Usually, beginning around or shortly
after birth, lactation occurs. As the initiation of lactation around
birth is nearly universal, the Commission considers the fact of
breastfeeding obvious, such that it will not be reasonable for an
employer to require documentation regarding lactation or pumping.
Pragmatically, the Commission notes that health care providers may
not be able to provide documentation regarding whether a worker is
pumping, nor the types of accommodations needed in order to pump
breast milk.\91\ Of course, not all workers can or choose to
breastfeed; those who do elect to breastfeed do so for widely
varying lengths of time. Although the rule states that it is
generally not reasonable for an employer to require supporting
documentation for lactation or pumping, an employer will not violate
the rule simply by asking the employee whether they require an
appropriate place to express breastmilk while at a worksite.
Employee confirmation--or a simple request to pump at work--is
sufficient confirmation.
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\91\ See supra note 67, for discussion of the PUMP Act and the
types of accommodations that may be requested with regard to
pumping.
---------------------------------------------------------------------------
If the request for supporting documentation was not reasonable
under the circumstances for the covered entity to determine whether
to grant the accommodation, a covered entity cannot defend the
denial of an accommodation based on the lack of documentation
provided by the worker, as set forth in Sec. 1636.4(a)(3). Further,
Sec. 1636.5(f) states that it could violate the retaliation and
coercion provisions of the PWFA if a covered entity requires the
submission of supporting documentation that is not reasonable under
the circumstances to determine whether to grant the accommodation
because, for example, (1) both the limitation and the need for
reasonable accommodation are obvious; (2) the employee or applicant
already has provided the employer with sufficient information to
substantiate that the individual has a known limitation and needs a
change or adjustment at work; (3) a pregnant worker is seeking one
of the modifications listed at 1636.3(j)(4); or (4) the
accommodation requested involves lactation.
Example 1636.3 #36/Documentation: An employer adopts a policy
requiring everyone who requests a reasonable accommodation to
provide medical documentation in support of the request. Cora, a
production worker who is 8 months pregnant, requests additional
bathroom breaks, and the employer applies the policy to her,
refusing to provide the accommodation until she submits medical
documentation. Cora therefore makes a medical appointment that she
does not need and brings in documentation to establish that she is
pregnant and has a physical condition that requires additional
bathroom breaks. The employer grants the requested accommodation
shortly before Cora gives birth. Despite the fact that the
accommodation was granted, this employer may have violated the PWFA,
42 U.S.C. 2000gg-1(a) and/or 2000gg-2(f).
Example 1636.3 #37/Documentation: An employer adopts a policy
requiring everyone who requests a reasonable accommodation to
provide medical documentation in support of the request. Fourteen
months after giving birth, Alex wants to continue to pump breastmilk
at work, explains that to her supervisor, and asks, as a reasonable
accommodation, for breaks to pump and that the room that is provided
have a chair, a table, and access to electricity and running water.
Alex's employer refuses to provide the accommodations unless Alex
provides supporting documentation from her health care provider.
Alex cannot provide the information, so she stops pumping. The
employer cannot use the lack of documentation as a defense to the
denial of the accommodation because documentation was not reasonable
under the circumstances for the employer to determine whether to
grant to accommodation, as set forth in Sec. 1636.4(a)(3).
1636.3(l)(2) Reasonable Documentation
When it is reasonable to require documentation under the
circumstances for the covered entity to determine whether to grant
the accommodation, the covered entity is permitted to require
reasonable documentation, including from a health care provider. The
rule defines ``reasonable documentation'' as documentation that
[[Page 54789]]
describes or confirms: (1) the physical or mental condition; (2)
that it is related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions; and (3) that a change or
adjustment at work is needed for that reason. For example, if an
employee asks for leave as a reasonable accommodation to attend
therapy appointments due to anxiety early in the employee's
pregnancy, the employer could, but is not required to, ask for
documentation confirming that there is a physical or mental
condition that is related to, affected by, or arising out of
pregnancy, and information about how frequent and long the leave
would need to be.
Adopting the longstanding approach under the ADA, Sec.
1636.4(f)(1)(v) and (f)(2)(v) explain that if an employee or
applicant provides documentation that is sufficient, continued
efforts by the covered entity to require that the individual provide
more documentation could be a violation of the PWFA's prohibitions
on retaliation and coercion. However, if a covered entity requests
additional information based on a good faith belief that the
documentation the employee submitted is insufficient, it would not
be liable for retaliation or coercion.\92\
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\92\ Enforcement Guidance on Reasonable Accommodation, supra
note 4, at n.33; Enforcement Guidance on Disability-Related
Inquiries, supra note 89, at Question 11.
---------------------------------------------------------------------------
1636.3(l)(3) Appropriate Health Care Provider To Provide
Documentation
If the covered entity meets the requirements laid out above to
request documentation and does so, the covered entity may request
documentation from an appropriate health care provider in the
particular situation. An appropriate provider may vary depending on
the situation; paragraph (l)(3) contains a non-exhaustive list of
possible health care providers that is based on the non-exhaustive
list for the ADA.\93\
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\93\ See Enforcement Guidance on Reasonable Accommodation, supra
note 4, at Question 6.
---------------------------------------------------------------------------
The Commission does not believe that it will be practical or
necessary for a covered entity to request or require that an
employee be examined by a health care provider of the covered
entity's choosing based on the PWFA's lower threshold for requiring
reasonable accommodations, the temporary duration of PWFA
accommodations, and the minimal nature of at least some of the most
common reasonable accommodations associated with general limitations
of pregnancy, childbirth, or related medical conditions.
1636.3(l)(4) Confidentiality
The PWFA does not include a provision specifically requiring
covered entities to maintain the confidentiality of medical
information obtained in support of accommodation requests under the
PWFA. However, applicants, employees, and former employees covered
by the PWFA also are covered by the ADA.\94\ Under the ADA, covered
entities are required to keep medical documentation of applicants,
employees, and former employees confidential, with limited
exceptions.\95\ These ADA rules on keeping medical information
confidential apply to all medical information, including medical
information voluntarily provided as part of the reasonable
accommodation process, and, therefore, include medical information
obtained under the PWFA. Moreover, as explained in Sec. 1636.5(f),
an employer's intentional disclosure of medical information obtained
through PWFA's reasonable accommodation process may violate the
PWFA's prohibition on retaliation and/or coercion.
---------------------------------------------------------------------------
\94\ See 42 U.S.C. 12111(5)(a) & 4 (ADA); 42 U.S.C.
2000gg(1)(B)(i) & (3)(A).
\95\ 29 CFR 1630.14(b) & (c); Enforcement Guidance on
Disability-Related Inquiries, supra note 89, at text accompanying
nn.9-10; EEOC, Enforcement Guidance: Preemployment Disability-
Related Questions and Medical Examinations, at text accompanying n.6
(1995), https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical.
---------------------------------------------------------------------------
Section 1636.4 Prohibited Practices
42 U.S.C. 2000gg-1 sets out five possible violations involving
the provision of reasonable accommodations.
1636.4(a) Failing To Provide Reasonable Accommodation
42 U.S.C. 2000gg-1(1) prohibits a covered entity from failing to
make a reasonable accommodation for a qualified employee or
applicant with a known limitation unless the covered entity can
demonstrate that the accommodation would impose an undue hardship on
the operation of its business. This provision of the PWFA uses the
same language as the ADA, and the rule likewise uses the language
from the corresponding ADA regulation, replacing references to
``individual with a disability'' and similar terms with ``employee
with a known limitation'' and similar terms.\96\ Because 42 U.S.C.
2000gg-1(1) uses the same operative language as the ADA, the
Commission proposes interpreting it in a similar manner.
---------------------------------------------------------------------------
\96\ 42 U.S.C. 12112(b)(5)(A); 29 CFR 1630.9(a).
---------------------------------------------------------------------------
This section is violated when a covered entity denies a
reasonable accommodation to a qualified employee or applicant with a
known limitation, absent undue hardship. As under the ADA, however,
a covered entity does not violate 42 U.S.C. 2000gg-1(1) merely by
refusing to engage in the interactive process; for a violation,
there also must have been a reasonable accommodation that the
employer could have provided absent undue hardship.
1636.4(a)(1) Unnecessary Delay in Responding to a Request for a
Reasonable Accommodation
Given that pregnancy-related limitations are frequently
temporary, a delay in providing an accommodation may mean that the
period necessitating the accommodation could pass without action
simply because of the delay.\97\ As with the ADA, an unnecessary
delay in responding to a request for a reasonable accommodation may
result in a violation of the PWFA if the delay results in a failure
to provide a reasonable accommodation.\98\ This can be true even if
the reasonable accommodation is eventually provided, when the delay
was unnecessary.
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\97\ See, e.g., Long Over Due, supra note 76, at 96 (statement
of Rep. Suzanne Bonamici) (praising the PWFA because it would allow
pregnant workers to get accommodations without waiting months or
years; 168 Cong. Rec. S10,081 (daily ed. Dec. 22, 2022) (statement
of Sen. Robert Casey, Jr.) (noting that ``pregnant workers need
immediate relief to remain healthy and on the job'').
\98\ Enforcement Guidance on Reasonable Accommodation, supra
note 4, at Question 10, n.38.
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The factors set out in Sec. 1636.4(a)(1) include the same
factors that are used when determining if a delay in the provision
of a reasonable accommodation violates the ADA,\99\ and the
regulation adds two new factors. First, in determining whether a
delay in providing a reasonable accommodation was unnecessary, the
question of whether providing the accommodation was simple or
complex is a factor to be considered. There are certain
modifications, set forth in Sec. 1636.3(j)(4), that will virtually
always be found to be reasonable accommodations that do not impose
an undue hardship: (1) allowing a pregnant employee to carry and
drink water, as needed; (2) allowing a pregnant employee additional
restroom breaks; (3) allowing a pregnant employee whose work
requires standing to sit and whose work requires sitting to stand;
and (4) allowing a pregnant employee breaks to eat and drink, as
needed. If there is a delay in providing these accommodations, it
will virtually always be found to be unnecessary because of the
presumption that these modifications will be reasonable
accommodations that do not impose an undue hardship. Second, another
factor to be considered when determining if a delay in providing a
reasonable accommodation was unnecessary is whether the covered
entity offered the employee or applicant an interim reasonable
accommodation during the interactive process or while waiting for
the covered entity's response. The provision of such an interim
accommodation will decrease the likelihood that an unnecessary delay
will be found. Under this factor, leave is not considered an
appropriate interim reasonable accommodation if there is another
interim reasonable accommodation that would not cause an undue
hardship and would allow the employee to continue working, unless
the employee selects or requests leave as an interim reasonable
accommodation.\100\
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\99\ Id.
\100\ The restriction on using leave as an interim accommodation
is based on 42 U.S.C. 2000gg-1(4).
---------------------------------------------------------------------------
1636.4(a)(2) Employee or Applicant Declining a Reasonable
Accommodation
The rule provides, as in the ADA, that if an employee declines a
reasonable accommodation, and without it the employee cannot perform
one or more essential functions of the position, then the employee
will no longer be considered qualified.\101\ However, because the
PWFA allows for the temporary suspension of one or more essential
functions in certain circumstances, an employer must also consider
whether one or more essential functions can be temporarily suspended
pursuant to the PWFA before a determination is made
[[Page 54790]]
pursuant to this section that the employee is not qualified.
---------------------------------------------------------------------------
\101\ See 29 CFR 1630.9(d).
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1636.4(a)(3) Covered Entity Denying a Reasonable Accommodation Due
to Lack of Supporting Documentation
If the request for documentation was not reasonable under the
circumstances for the covered entity to determine whether to grant
the accommodation, a covered entity cannot defend the denial of an
accommodation based on the lack of documentation provided by the
worker.
1636.4(a)(4) Choosing Among Possible Accommodations
Similar to the ADA, if there is more than one effective
accommodation, the employee's or applicant's preference should be
given primary consideration. However, the employer providing the
accommodation has the ultimate discretion to choose between
potential reasonable accommodations and may choose, for example, the
less expensive accommodation or the accommodation that is easier for
it to provide, or generally the accommodation that imposes the least
hardship.\102\ In the situation where the employer is choosing
between reasonable accommodations and does not provide the
accommodation that is the worker's preferred accommodation, the
employer does not have to show that it is an undue hardship to
provide the worker's preferred accommodation.
---------------------------------------------------------------------------
\102\ 29 CFR part 1630 app. 1630.9.
---------------------------------------------------------------------------
A covered entity's ``ultimate discretion'' to choose a
reasonable accommodation is limited by certain other considerations.
First, the accommodation must provide the individual with a known
limitation with an equal employment opportunity, meaning 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 known
limitation.\103\ Thus, if there is more than one accommodation that
does not impose an undue hardship, but one of them does not provide
the employee with an equal employment opportunity, the employer must
choose the one that provides the worker with equal employment
opportunity.\104\ Depending on the facts, selecting the
accommodation that does not provide equal opportunity could violate
42 U.S.C. 2000gg-1(1), 2000gg-(1)(5) or 2000gg-2(f).\105\
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\103\ 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.''); 29 CFR part 1630 app. 1630.2(o) (explaining that
reassignment should be to a position with equivalent pay, status,
etc., if possible); see also Enforcement Guidance on Reasonable
Accommodation, supra note 4, at text following n.80 (``However, if
both the employer and the employee voluntarily agree that transfer
is preferable to remaining in the current position with some form of
reasonable accommodation, then the employer may transfer the
employee.''); Cf. EEOC, Compliance Manual on Religious
Discrimination, 12-IV.3 (2021) (stating that in the context of a
religious accommodation, an accommodation would not be reasonable
``if it requires the employee to accept a reduction in pay rate or
some other loss of a benefit or privilege of employment and there is
an alternative accommodation that does not do so.'') https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination
[hereinafter Religious Discrimination Compliance Manual].
\104\ Enforcement Guidance on Reasonable Accommodations, supra
note 4, Question 9 Example B.
\105\ Depending on the facts, this could be a violation of Title
VII's prohibition on sex discrimination as well.
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Second, 42 U.S.C. 2000gg-1(2) prohibits a covered entity from
requiring a qualified employee or applicant affected by pregnancy,
childbirth, or related medical conditions to accept an accommodation
other than a reasonable accommodation arrived at through the
interactive process. Third, 42 U.S.C. 2000gg-1(4) prohibits a
covered entity from requiring a qualified employee with a known
limitation to take leave if there is a reasonable accommodation that
will allow the employee to continue to work, absent undue hardship.
Fourth, 42 U.S.C. 2000gg-1(5) prohibits a covered entity that is,
for example, selecting from an array of accommodations, all of which
are effective and do not impose an undue hardship, from picking one
that results in the covered entity taking adverse action in terms,
conditions, or privileges of employment of the employee or
applicant. Fifth, 42 U.S.C. 2000gg-2(f) prohibits retaliation and
coercion by covered entities.
Example 1636.4 #38/Failing to Provide an Accommodation: Yasmin's
job requires her to travel to meet with clients. Because of her
pregnancy, she is not able to travel for three months. She asks that
she be allowed to conduct her client meetings via video
conferencing. Although this accommodation would allow her to perform
her essential job functions and does not impose an undue hardship,
her employer reassigns her to smaller, local accounts. Being
assigned only to these accounts limits Yasmin's ability to compete
for promotions and bonuses as she had in the past.
This could be a violation of 42 U.S.C. 2000gg-1(1), because
Yasmin is denied an equal opportunity to compete for promotions and
is thus denied a reasonable accommodation. The employer's actions
could also violate 42 U.S.C. 2000gg-1(5) and 42 U.S.C. 2000gg-2(f),
or Title VII's prohibition against pregnancy discrimination.
1636.4(b) Requiring Employee or Applicant To Accept an
Accommodation
42 U.S.C. 2000gg-1(2) prohibits a covered entity from requiring
an employee or applicant to accept an accommodation other than any
reasonable accommodation arrived at through the interactive process.
This provision responds to concerns that some employers may
unilaterally curtail what a pregnant worker can do in the mistaken
belief that the worker needs some type of help.\106\ Pursuant to
this provision in the PWFA and the rule, a covered entity cannot
force an employee or applicant to accept an accommodation such as
light duty or a temporary transfer, or delay of an examination that
is part of the application process, without engaging in the
interactive process, even if the covered entity's motivation is
concern for the applicant's or employee's health or pregnancy.
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\106\ Cf. EEOC, Enforcement Guidance: Unlawful Disparate
Treatment of Workers with Caregiving Responsibilities II.A.3 (2007),
https://www.eeoc.gov/laws/guidance/enforcement-guidance-unlawful-disparate-treatment-workers-caregiving-responsibilities (describing
situations in which employers incorrectly assume based on
stereotypes that workers with caregiving responsibilities need a
change to their workload or work environment); see also UAW v.
Johnson Controls, 499 U.S. 187 (1991) (striking down employer's
fetal protection policy that limited the opportunities of women);
Long Over Due, supra note 76, at 192 (written answers of Dina Bakst,
Co-Founder & Co-President, A Better Balance) (explaining that
employers have been known to unilaterally cut a worker's hours or
stop a worker from working late in an attempt to ``help'' the
employee or because the employer felt sorry for the worker, even
though an employee did not ask for such accommodation and did not
need it).
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42 U.S.C. 2000gg-1(2) does not require that the employee or
applicant have a limitation, known or not; thus, a violation of 42
U.S.C. 2000gg-1(2) could occur if a covered entity notices that an
employee or applicant is pregnant and decides, without engaging in
the interactive process with the employee or applicant, that the
employee or applicant needs a particular accommodation, and
unilaterally requires the employee or applicant to accept that
accommodation, even though the employee or applicant has not
requested it and can perform the essential functions of the job
without it. For example, this provision could be violated if an
employment agency, without discussing the situation with the
candidate, decided that a candidate recovering from a miscarriage
needed an accommodation in the form of not being sent to certain
jobs that the agency viewed as too physical, or if an employer
decided to excuse a pregnant worker from overtime as an
accommodation, without discussing it with them.\107\
---------------------------------------------------------------------------
\107\ These actions also could violate Title VII's prohibition
of disparate treatment based on sex. See Enforcement Guidance on
Pregnancy Discrimination, supra note 11, at I.B.1.
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Additionally, a violation could occur if a covered entity
receives a request for a reasonable accommodation and unilaterally
imposes an accommodation that was not requested without engaging in
the interactive process.
Example 1636.4 #39: Kia, a restaurant server, is pregnant. She
asks for additional breaks during her shifts as her pregnancy
progresses because she feels tired, and her feet are swelling. Her
employer, without engaging in the interactive process with Kia,
directs Kia to take host shifts for the remainder of her pregnancy,
because she can sit for long periods during the shift. The employer
has violated 42 U.S.C. 2000gg-1(2) and Sec. 1636.4(b) of the rule,
because it required Kia to accept an accommodation other than one
arrived at through the interactive process, even if Kia's earnings
did not decrease and her terms, conditions, and privileges of
employment were not harmed.
[[Page 54791]]
The Commission recognizes that the relief in this situation may be
limited to requiring the employer to engage in the interactive
process with the employee.
By contrast, if the host shift does not provide Kia with equal
terms, conditions, and privileges of employment (e.g., Kia's wages
decrease or Kia no longer can earn tips), the covered entity also
may have violated 42 U.S.C. 2000gg-1(1) (requiring reasonable
accommodation absent undue hardship); 42 U.S.C. 2000gg-1(5)
(prohibiting adverse action in terms, benefits, or privileges of
employment); or 42 U.S.C. 2000gg-2(f) (prohibiting retaliation and
coercion) (implemented in the rule at Sec. 1636.4(a), (e) and Sec.
1636.5(f)).
Finally, this provision also could be violated if a covered
entity has a rule that requires all pregnant workers to stop a
certain function--such as traveling--automatically, without any
evidence that the particular worker is unable to perform that
function.
1636.4(c) Denying Opportunities
42 U.S.C. 2000gg-1(3) prohibits a covered entity from denying
employment opportunities to a qualified employee or applicant with a
known limitation if the denial is based on the need of the covered
entity to make reasonable accommodations to the known limitations of
the employee or applicant. Thus, an employee's or applicant's known
limitation and need for a reasonable accommodation cannot be part of
the covered entity's decision regarding hiring, discharge,
promotion, or other employment decisions, unless the reasonable
accommodation would impose an undue hardship on the covered entity.
This provision in the PWFA uses language similar to that of the ADA,
and the rule likewise uses the language similar to the corresponding
ADA regulation.\108\ Additionally, the rule includes situations
where the covered entity's decision is based on the future
possibility that a reasonable accommodation will be needed, i.e., 42
U.S.C. 2000gg-1(3) prohibits a covered entity from making a decision
based on its belief that an individual may need a reasonable
accommodation in the future even if the individual has not asked for
one. Thus, under the rule, this prohibition would include situations
where a covered entity refuses to hire a pregnant applicant because
the covered entity believes that the applicant will need leave to
recover from childbirth, even if the covered entity does not know
the exact amount of leave the applicant will require, or the
applicant has not mentioned the need for leave as a reasonable
accommodation to the covered entity. The Commission proposes this
addition to ensure that workers are protected in situations where
the employer's actions are based on avoiding the provision of a
reasonable accommodation, even if one is not requested.
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\108\ 42 U.S.C. 12112(b)(5)(B); 29 CFR 1630.9(b).
---------------------------------------------------------------------------
1636.4(d) Requiring Employee to Take Leave
Sometimes, when employees notify their employers that they are
pregnant, employers place them on leave or direct them to use
leave.\109\ Workers on unpaid leave risk their economic security,
and workers who use their leave--whether paid or unpaid--prior to
giving birth may not have leave when they need it to recover from
childbirth.\110\
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\109\ H.R. Rep. No. 117-27, pt. 1, at 24.
\110\ Long Over Due, supra note 76, at 81 (statement of Rep.
Jahana Hayes) (explaining that she kept working while pregnant in
order to save her leave for after childbirth).
---------------------------------------------------------------------------
42 U.S.C. 2000gg-1(4) seeks to limit this practice. Under this
provision, a covered entity may not require a qualified employee
with a known limitation to take leave, whether paid or unpaid, if
another reasonable accommodation can be provided, absent undue
hardship. In other words, under the PWFA, an employee cannot be
forced to take leave if another reasonable accommodation can be
provided that would not impose an undue hardship and would allow the
employee to continue to work.
Of course, this limitation does not prohibit the provision of
leave as a reasonable accommodation if leave is the reasonable
accommodation requested or selected by the employee, or if it is the
only reasonable accommodation that does not cause an undue hardship.
As explained above in the preamble's discussion of Sec. 1636.3(h)
and (i), both paid leave (accrued, short-term disability, or another
employer benefit) and unpaid leave are potential reasonable
accommodations under the PWFA. 42 U.S.C. 2000gg-1(4) and the rule
merely prohibits an employer from requiring an employee to take
leave if there is another reasonable accommodation that would not
impose an undue hardship and would allow the employee to remain on
the job.
1636.4(e) Adverse Action on Account of Requesting or Using a
Reasonable Accommodation
The PWFA contains overlapping provisions that protect workers
seeking or using reasonable accommodations. Importantly, nothing in
the PWFA limits which provision a worker may use to protect their
rights.
One of these provisions is 42 U.S.C. 2000gg-1(5), which
prohibits a covered entity from ``tak[ing] adverse action in terms,
conditions, or privileges of employment against a qualified employee
on account of the employee requesting or using a reasonable
accommodation to the known limitations related to pregnancy,
childbirth, or related medical conditions of the employee.'' 42
U.S.C. 2000gg-1(5) only applies to situations involving a qualified
employee who asks for or uses a reasonable accommodation. The
protections provided by 42 U.S.C. 2000gg-1(5) are likely to have
significant overlap with 42 U.S.C. 2000gg-2(f), which prohibits
retaliation. As explained in the discussion of 42 U.S.C. 2000gg-2(f)
(Sec. 1636.5(f)), however, the PWFA's anti-retaliation provisions
apply to a broader group of employees and actions than 42 U.S.C.
2000gg-1(5) does.
The term ``take adverse action'' in 42 U.S.C. 2000gg-1(5) is not
taken from Title VII or the ADA. From the context of this provision
and the basic dictionary definitions of the terms, this prohibits an
employer from taking a harmful action against an employee.\111\
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\111\ Adverse, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/adverse (``hostile,'' ``unfavorable'' and
``harmful.'') (last visited June 13, 2023).
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``Terms, conditions, or privileges of employment'' is a term
from Title VII, and the EEOC has interpreted it to encompass a wide
range of activities or practices that occur in the workplace
including, but not limited to, discriminatory work environment or
atmosphere; duration of work (such as the length of an employment
contract, hours of work, or attendance); work rules; job assignments
and duties; and job advancement (such as training, support, and
performance evaluations).\112\ In addition, for the purposes of 42
U.S.C. 2000gg-1(5), ``terms, conditions, and privileges of
employment'' can include hiring, discharge, or compensation.\113\
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\112\ 42 U.S.C. 2000e-2(a)(1); Compliance Manual on Terms,
Conditions, and Privileges of Employment, supra note 40, at 613.1(a)
(stating that the language is to be read in the broadest possible
terms and providing a list of examples).
\113\ The PWFA's use of the phrase ``terms, conditions, and
privileges of employment'' includes hiring, discharge, and
compensation, which are also included within the scope of Title VII.
42 U.S.C. 2000e-2(a)(1).
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Thus, this provision may be violated when, for example, a
covered entity grants a reasonable accommodation but then penalizes
the employee.
Example 1636.4 #40: Nava took leave to recover from childbirth
as a reasonable accommodation under the PWFA, and, as a result,
failed to meet the sales quota for that quarter, which led to a
negative performance appraisal. The negative appraisal could be a
violation of 42 U.S.C. 2000gg-1(5) because Nava received it due to
the use of a reasonable accommodation.
Also, an employer may violate this provision if there is more
than one accommodation that does not impose an undue hardship, and
the employer, after the interactive process, chooses the
accommodation that causes an adverse action with respect to the
terms, conditions, or privileges of employment, despite the
existence of an alternative accommodation that would not do so.
Example 1636.4 #41: Ivy asks for additional bathroom breaks
during work because of pregnancy, including during overtime shifts.
After talking to Ivy, rather than providing the breaks during
overtime, Ivy's supervisor decides Ivy should simply not work
overtime, because during the overtime shift there are fewer
employees, and the supervisor does not want to bother figuring out
coverage for Ivy, although it would not be an undue hardship to do
so. As a result, Ivy is not assigned overtime and loses earnings.
This conduct could violate 42 U.S.C. 2000gg-1(5) in two ways.
First, Ivy's request for a reasonable accommodation led to an
adverse action in terms, conditions, or privileges of employment.
Second, Ivy's use of the accommodation of not working overtime led
to a reduction in pay, i.e., an adverse action in terms, conditions,
or
[[Page 54792]]
privileges of Ivy's employment, and there was an alternative
accommodation (assigning coverage for Ivy as needed) that would not
have done so.
Example 1636.4 #42: Leyla asks for telework due to morning
sickness. Through the interactive process, it is determined that
both telework and a later schedule combined with an hour rest break
in the afternoon would allow Leyla to perform the essential
functions of her job and would not impose an undue hardship.
Although Leyla prefers telework, the employer would rather Leyla be
in the office. It would not be a violation of 42 U.S.C. 2000gg-1(5)
to offer Leyla the schedule change/rest break instead of telework as
a reasonable accommodation.
The facts set out in examples 40 and 41 could also violate 42
U.S.C. 2000gg-1(1) and 2000gg-2(f).
As stated at the beginning of this section, the PWFA has
overlapping protections for workers who request or use reasonable
accommodations. The Commission emphasizes that qualified employees
with known limitations may bring actions under any of these
provisions.
Section 1636.5 Remedies and Enforcement
In crafting the PWFA remedies and enforcement section, Congress
recognized the advisability of using the existing mechanisms in
place for redress of other forms of employment discrimination. Thus,
the enforcement and remedies sections of the PWFA mirror those of
the statutes that provide its definitions of covered entity and
employee (Title VII, GERA, and the Congressional Accountability
Act).
1636.5(f) Prohibition Against Retaliation
The anti-retaliation provisions of the PWFA should be
interpreted broadly, like those of Title VII and the ADA, to
effectuate Congress's broad remedial purpose in enacting these
laws.\114\ The protections of these provisions extend beyond
qualified employees and applicants with known limitations and cover
activity that may not yet have occurred, such as a circumstance in
which a covered entity threatens an employee or applicant with
termination if they file a charge or requires an employee or
applicant to sign an agreement that prohibits such individual from
filing a charge with the EEOC.\115\
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\114\ EEOC, Enforcement Guidance on Retaliation and Related
Issues II.A, A.1 (2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues [hereinafter
Enforcement Guidance on Retaliation] (describing the broad
protection of the participation clause); id. at A.2, A.2.a
(describing the broad protection of the opposition clause).
\115\ EEOC, Enforcement Guidance on Non-Waivable Employee Rights
under EEOC Enforced Statutes II (1997), https://www.eeoc.gov/laws/guidance/enforcement-guidance-non-waivable-employee-rights-under-eeoc-enforced-statutes (``[P]romises not to file a charge or
participate in an EEOC proceeding are null and void as a matter of
public policy. Agreements extracting such promises from employees
may also amount to separate and discrete violations of the anti-
retaliation provisions of the civil rights statutes.'').
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1636.5(f)(1) Prohibition Against Retaliation
The regulation reiterates the statutory prohibition against
retaliation from 42 U.S.C. 2000gg-2(f)(1), which uses the same
language as Title VII and the ADA.\116\ Thus, the types of conduct
prohibited and the standard for determining what constitutes
retaliatory conduct under the PWFA are the same as they are under
Title VII. Accordingly, this provision prohibits discrimination
against individuals who engage in protected activity, which includes
`` `participating' in an EEO process or `opposing' discrimination.''
\117\ Title VII's anti-retaliation provision is broad and protects
an individual from conduct, whether related to employment or not,
that a reasonable person would have found ``materially adverse,''
meaning that the action ``well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.'' \118\
The same interpretation applies to the PWFA's anti-retaliation
provision.\119\
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\116\ 42 U.S.C. 2000e-3(a); 42 U.S.C. 12203(a).
\117\ Enforcement Guidance on Retaliation, supra note 114, at
II.A; see also id. at II.A.1-A.2 (describing protected activity
under Title VII's anti-retaliation clause).
\118\ Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (internal citations and quotations omitted).
\119\ All retaliatory conduct under Title VII (and the ADA),
including retaliation that takes the form of harassment, is
evaluated under the legal standard for retaliation. See Enforcement
Guidance on Retaliation, supra note 114, at II.B.3.
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The rule contains five other provisions based on the statutory
language and established anti-retaliation concepts under Title VII
and the ADA.
First, like Title VII and the ADA, the rule protects employees,
applicants, and former employees because 42 U.S.C. 2000gg-2(f)(1)
protects ``employees,'' not ``qualified employees with a known
limitation.'' Therefore, the rule states that an employee,
applicant, or former employee need not establish that they have a
known limitation or are qualified under the PWFA to bring a claim
under 42 U.S.C. 2000gg-2(f)(1).\120\ Second, the rule explains that,
consistent with the ADA and Title VII, a request for a reasonable
accommodation under the PWFA constitutes protected activity, and
therefore retaliation for such a request is prohibited.\121\ Third,
the rule provides that an employee, applicant, or former employee
does not have to actually be deterred from exercising or enjoying
rights under this section for the retaliation to be actionable.\122\
Fourth, as explained in the discussion of the documentation that can
be required in support of a request for reasonable accommodation,
the rule notes that it may violate this section for a covered entity
to require documentation when it is not reasonable under the
circumstances to determine whether to provide the accommodation.
Finally, the rule explains that when an employee or applicant
provides sufficient documentation to describe the relevant
limitation and need for accommodation, continued efforts on the
covered entity's part to obtain documentation violates the
retaliation prohibition unless the covered entity has a good faith
belief that the submitted documentation is insufficient.
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\120\ See Enforcement Guidance on Retaliation, supra note 114,
at III (recognizing that under the ADA, individuals need not
establish that they are covered under the statute's substantive
discrimination provisions in order to be protected against
retaliation); id. at II.A.3; see also Robinson v. Shell Oil Co., 519
U.S. 337, 346 (1997) (holding that Title VII protects former
employees from retaliation).
\121\ Enforcement Guidance on Retaliation, supra note 114, at
II.A.2.e and Example 10.
\122\ Id. at II.B.1, B.2 (stating that the retaliation
``standard can be satisfied even if the individual was not in fact
deterred'' and that ``[i]f the employer's action would be reasonably
likely to deter protected activity, it can be challenged as
retaliation even if it falls short of its goal'').
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1636.5(f)(2) Prohibition Against Coercion
The PWFA's anti-coercion provision uses the same language as the
ADA's interference provision, with one minor variation in the title
of the section.\123\ Similar to the ADA, the scope of the PWFA
coercion provision is broader than the anti-retaliation provision;
it reaches those instances ``when conduct does not meet the
`materially adverse' standard required for retaliation.'' \124\
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\123\ The ADA uses the term ``Interference, coercion, or
intimidation'' to preface the prohibition against interference (42
U.S.C. 12203(b)), whereas the PWFA uses ``Prohibition against
coercion.'' The language of the prohibitions is otherwise identical.
\124\ Enforcement Guidance on Retaliation, supra note 114, at
III.
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The rule follows the language of 42 U.S.C. 2000gg-2(f)(2) and
protects ``individuals,'' not ``qualified employees with a known
limitation under the PWFA.'' Thus, the rule specifies that,
consistent with the ADA's interference provisions, the individual
need not be an employee, applicant, or former employee and need not
establish that they have a known limitation or that they are
qualified (as those terms are defined in the PWFA) to bring a claim
for coercion under the PWFA.\125\
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\125\ Id.
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The purpose of this provision is to ensure that workers are free
to avail themselves of the protections of the statute. Thus,
consistent with the ADA regulations for the same provision, the rule
adds ``harass'' to the list of prohibitions, as harassment may be a
method to coerce a worker into not availing themselves of their PWFA
rights.\126\ The rule also states that an individual does not, in
fact, have to be deterred from exercising or enjoying rights under
this section for the coercion to be actionable.\127\
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\126\ 29 CFR 1630.12(b).
\127\ Enforcement Guidance on Retaliation, supra note 114, at
II.B.1-B.2 (noting that actions can be challenged as retaliatory
even if the person was not deterred from engaging in protected
activity).
---------------------------------------------------------------------------
The rule contains three examples of actions that could be
violations. First, the rule states that it prohibits coercion,
intimidation, threats, harassment, or interference because an
individual, including an employee, applicant, or former employee,
has asked for a reasonable accommodation under the PWFA.
Second, the rule provides that coercion could include situations
in which the
[[Page 54793]]
covered entity requires documentation in support of a request for
reasonable accommodation when it is not reasonable under the
circumstances to determine whether to provide the accommodation.
Third, the rule states that a covered entity that has sufficient
information regarding the known limitation and the need for
reasonable accommodation but continues to require additional
information or documentation violates the anti-coercion provision
unless the covered entity has a good faith belief that the
documentation is insufficient.
Some other examples of coercion include:
coercing an individual to relinquish or forgo an
accommodation to which they are otherwise entitled;
intimidating an applicant from requesting an
accommodation for the application process by indicating that such a
request will result in the applicant not being hired;
issuing a policy or requirement that purports to limit
an employee's or applicant's rights to invoke PWFA protections
(e.g., a fixed leave policy that states ``no exceptions will be made
for any reason'');
interfering with a former employee's right to file a
PWFA lawsuit against a former employer by stating that a negative
job reference will be given to prospective employers if the suit is
filed; and
subjecting an employee to unwarranted discipline,
demotion, or other adverse treatment because they assisted a
coworker in requesting a reasonable accommodation.\128\
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\128\ Id. at III.
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Examples of Retaliation and/or Coercion
Actions that the courts or the Commission have previously
determined may qualify as retaliation or coercion under Title VII or
the ADA may qualify under the PWFA as well. Depending on the facts,
a covered entity's retaliatory action for activity protected under
the PWFA may violate 42 U.S.C. 2000gg-1(5), 2000gg-2(f)(1) and/or
2000gg-2(f)(2), as implemented by Sec. Sec. 1636.4(e) and
1636.5(f). The following examples would likely violate 42 U.S.C.
2000gg-2(f) and may also violate 42 U.S.C. 2000gg-1(5).
Example 1636.5 #43: Perrin requests a stool due to pregnancy.
Lucy, Perrin's supervisor, denies Perrin's request. The corporate
human resources department instructs Lucy to grant the request
because there is no undue hardship. Angry about being overruled,
Lucy thereafter gives Perrin an unjustified poor performance rating
and denies Perrin's request to attend training that Lucy approves
for Perrin's coworkers.
Example 1636.5 #44: Marisol files an EEOC charge after Cyrus,
her supervisor, refused to provide her with the reasonable
accommodation of help with lifting after her cesarean section.
Marisol also alleges that after she asked for the accommodation,
Cyrus asked two coworkers to conduct surveillance on Marisol,
including watching her at work, noting with whom she associated in
the workplace, suggesting to other employees that they should avoid
her, and reporting her breaks to Cyrus.
Example 1636.5 #45: Mara provides her employer with a note from
her health care provider explaining that she is pregnant, has
morning sickness, and needs to start work later on certain days.
Mara's supervisor requires that Mara confirm the pregnancy through
an ultrasound, even though the employer already has sufficient
information regarding Mara's pregnancy.
Example 1636.5 #46: During an interview at an employment agency,
Arden tells the human resources staffer, Stanley, that Arden is
dealing with complications from their recent childbirth and may need
time off for doctor's appointments during their first few weeks at
work. Stanley counsels Arden that needing leave so soon after
starting will be a ``black mark'' on their application.
Example 1636.5 #47: Merritt, a client of an employment agency,
is discharged from an employer after requesting an accommodation
under the PWFA. The employment agency refuses to refer Merritt to
other employers, telling Merritt that they only refer workers who
will not cause any trouble.
Example 1636.5 #48: Jessie, a factory union steward, ensures
that workers know about their rights under the PWFA and encourages
workers with known limitations to ask for reasonable accommodations.
Jessie helps employees navigate the reasonable accommodation process
and provides suggestions of possible reasonable accommodations.
Factory supervisors are annoyed at the number of PWFA reasonable
accommodation requests and write up Jessie for petty safety
violations and other actions that had not been worthy of discipline
before.
Example 1636.5 #49: While she was pregnant, Laila requested and
received the reasonable accommodation of a temporary suspension of
the essential function of moving heavy boxes and placement in the
light duty program. After giving birth, Laila tells her employer
that she has decided to resign and stay home for a year. Her
employer responds by saying that if Laila follows through and
resigns now, the employer will have no choice but to give her a
negative reference because Laila demanded an accommodation but did
not have the loyalty to come back after having her baby.
Example 1636.5 #50: Robbie, a retail worker, is visibly pregnant
and would like to sit while working at the cash register. Robbie
explains the situation to the manager, who requires Robbie to
produce a signed doctor's note saying that Robbie is pregnant and
needs to sit. Because Robbie is obviously pregnant, has confirmed
the pregnancy, and requests one of the simple modifications that
will virtually always be found to be a reasonable accommodation that
does not impose an undue hardship, the covered entity is not
permitted to require additional medical documentation.
Protection of Confidential Medical Information
As explained in the discussion of Sec. 1636.3(l) Documentation,
the established ADA rules requiring covered entities to keep medical
information of applicants, employees, and former employees
confidential apply to medical information obtained in connection
with a reasonable accommodation request under the PWFA.\129\ Medical
information obtained by the employer in the process of a worker
seeking a reasonable accommodation under the PWFA must be protected
as set out in the ADA and failing to do so would violate the ADA.
For example, the fact that someone is pregnant or has recently been
pregnant, is medical information about that person, as is the fact
that they have a medical condition related to pregnancy or
childbirth. Thus, disclosing that someone is pregnant, has recently
been pregnant, or has a related medical condition violates the ADA,
unless an exception applies, as does disclosing that someone is
receiving or has requested an accommodation under the PWFA or has
limitations for which they requested or are receiving a reasonable
accommodation under the PWFA (because revealing this information
discloses that the person is pregnant, has recently been pregnant,
or has a related medical condition).\130\
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\129\ Enforcement Guidance on Disability-Related Inquiries,
supra note 89, at text accompanying n.9; EEOC, Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations,
at text accompanying n.6 and nn.23-25 (1995), https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical.
\130\ 29 CFR 1630.14(c); Enforcement Guidance on Disability-
Related Inquiries , supra note 89, at A.
---------------------------------------------------------------------------
In addition, releasing medical information, threatening to
release medical information, or requiring an employee or applicant
to share their medical information with individuals who have no role
in processing a request for reasonable accommodation may violate the
PWFA's retaliation and coercion provisions.\131\
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\131\ See Sec. 1636.5(f)(1) and (2).
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Section 1636.7 Relationship to Other Laws
The PWFA at 42 U.S.C. 2000gg-5 and this section of the
regulation address the PWFA's relationship to other Federal, State,
and local laws.
1636.7(a) Relationship to Other Laws Generally
42 U.S.C. 2000gg-5(a)(1) addresses the relationship of the PWFA
to other Federal, State, and local laws governing protections for
individuals affected by pregnancy, childbirth, or related medical
conditions and makes clear that the PWFA does not limit the rights
of individuals affected by pregnancy, childbirth, or related medical
conditions under a Federal, State, or local law that provides
greater or equal protection. It is equally true that Federal, State,
or local laws that provide less protection for individuals affected
by pregnancy, childbirth, or related medical conditions than the
PWFA do not limit the rights provided by the PWFA. The regulation
reiterates the statutory provision addressing the relationship of
the PWFA to other Federal, State, and local laws governing
protections for individuals affected by pregnancy, childbirth, or
related medical conditions.
Thirty States and five localities have laws that provide
accommodations for pregnant
[[Page 54794]]
workers.\132\ Federal laws, including, but not limited to, Title
VII, the ADA, the FMLA, the Rehabilitation Act, and the PUMP Act,
also provide protections for certain workers affected by pregnancy,
childbirth, or related medical conditions.\133\ All of the
protections regarding discrimination based on pregnancy, childbirth,
or related medical conditions in these laws are unaffected by the
PWFA. Additionally, if there are greater protections in other laws,
those would apply. For example, the State of Washington's Healthy
Starts Act provides that certain accommodations, including lifting
restrictions of 17 pounds or more, cannot be the subject of an undue
hardship analysis.\134\ If a worker in Washington is seeking a
lifting restriction as a reasonable accommodation for a pregnancy-
related reason under the Healthy Starts Act, an employer in
Washington cannot argue that a lifting restriction of 20 pounds is
an undue hardship, even though that defense could be raised if the
claim were brought under the PWFA.
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\132\ U.S. Dep't of Lab., Employment Protections for Workers Who
Are Pregnant or Nursing, https://www.dol.gov/agencies/wb/pregnant-nursing-employment-protections (last visited Apr. 4, 2023).
\133\ For an explanation of the interaction between the FMLA and
the ADA, see 29 CFR 825.702.
\134\ Wash. Rev. Code 43.10.005(1)(d).
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Furthermore, employees and applicants may bring claims under
multiple State or Federal laws. Thus, a pregnant applicant denied a
position because they are pregnant and will need leave for recovery
from childbirth may bring a claim under both Title VII for sex
discrimination and the PWFA for the denial of an employment
opportunity based on the applicant's need for an accommodation.
Similarly, a worker with postpartum depression who, for that reason,
is denied an equal employment opportunity may bring a claim under
both the PWFA and the ADA, and possibly Title VII.
Under Title VII, employees affected by pregnancy, childbirth, or
related medical conditions may be able to receive accommodations if
they can identify a comparator ``similar in their ability or
inability to work.'' \135\ Under the PWFA, employees affected by
pregnancy, childbirth, or related medical conditions will be able to
seek reasonable accommodations whether or not other employees have
those accommodations and whether or not the affected employees are
similar in their ability or inability to work as employees not so
affected. Additionally, if the covered entity offers a neutral
reason or policy to explain why employees affected by pregnancy,
childbirth or related medical conditions cannot access a specific
benefit, the employee with a known limitation under the PWFA still
may ask for a waiver of that policy as a reasonable accommodation.
Under the PWFA, the employer must grant the waiver, or another
reasonable accommodation, absent undue hardship. If, for example, an
employer denies a pregnant worker's request to join its light duty
program as a reasonable accommodation, arguing that the program is
for workers with on-the-job injuries, it may be difficult for the
employer to prove that allowing the worker with a known limitation
under the PWFA to use that program is an undue hardship. Finally,
employers in this situation should remember that if there are others
to whom the benefit is extended, the Young v. United Parcel Serv.,
Inc., Court stated that ``[the employer's] reason [for refusing to
accommodate a pregnant employee] normally cannot consist simply of a
claim that it is more expensive or less convenient to add pregnant
women to the category of those . . . whom the employer
accommodates.'' \136\ Thus, if the undue hardship defense of the
employer under the PWFA is based solely on cost or convenience, that
defense could, under certain fact patterns, lead to liability under
Title VII.
---------------------------------------------------------------------------
\135\ 42 U.S.C. 2000e(k).
\136\ Young, 575 U.S. at 229.
---------------------------------------------------------------------------
42 U.S.C. 2000gg-5(a)(2) makes clear that an employer-sponsored
health plan is not required under the PWFA to pay for or cover any
item, procedure, or treatment and that the PWFA does not affect any
right or remedy available under any other Federal, State, or local
law with respect to any such payment or coverage requirement. For
example, nothing in the PWFA requires or forbids an employer to pay
for health insurance benefits for an abortion.
1636.7(b) Rule of Construction
42 U.S.C. 2000gg-5(b) provides a ``[r]ule of construction''
\137\ stating that the law is ``subject to the applicability to
religious employment'' set forth in section 702(a) of the Civil
Rights Act of 1964, 42 U.S.C. 2000e-1(a). The relevant portion of
section 702(a) provides that ``[Title VII] shall not apply . . . to
a religious corporation, association, educational institution, or
society with respect to the employment of individuals of a
particular religion to perform work connected with the carrying on
by such corporation, association, educational institution, or
society of its activities.'' \138\
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\137\ 42 U.S.C. 2000gg-5(b) (heading).
\138\ The PWFA makes no mention of section 703(e)(2) of the
Civil Rights Act of 1964, which provides a second statutory
exemption for religious educational institutions in certain
circumstances.
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As with assertions of section 702(a) in Title VII matters, when
42 U.S.C. 2000gg-5(b) is asserted by a respondent employer, the
Commission will consider the application of the provision on a case-
by-case basis.\139\
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\139\ The EEOC's procedures ensure that employers have an
opportunity to raise religious defenses and that any religious
defense to a charge of discrimination is carefully considered. See
Religious Discrimination Compliance Manual, supra note 103, at 12-
I(C)(3) (discussing the ``nuanced balancing'' required and
instructing investigators to ``take great care''); 29 CFR 1601 et
seq. (setting out the EEOC's charge procedures). The EEOC recognizes
employers' valid religious defenses and dismisses charges at the
administrative stage accordingly. See Newsome v. EEOC, 301 F.3d 227,
229-230 (5th Cir. 2002) (per curiam) (EEOC dismissed a charge where
the employer offered evidence it fell under the religious
organization exemption). The EEOC has no authority to impose
penalties on private employers, see Occidental Life Ins. Co. of Cal.
v. EEOC, 432 U.S. 355, 363 (1977); thus, if the EEOC rejects a
private employer's asserted religious defense, the EEOC cannot force
the employer to resolve the charge or pay any type of damages. To
obtain any type of relief if the EEOC is unsuccessful at obtaining
voluntary compliance, the EEOC would have to bring a case in Federal
court, where the validity of the employer's religious defense would
be determined.
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Section 1636.8 Severability
Following Congress's rule for the statute, in places where the
regulation uses the same language as the statute, if any of those
identical regulatory provisions, or the application of those
provisions to particular persons or circumstances, is held invalid
or found to be unconstitutional, the remainder of the regulation and
the application of that provision of the regulation to other persons
or circumstances shall not be affected. For example, if Sec.
1636.4(b) of the regulation is held to be invalid or
unconstitutional, it is the intent of the Commission that the
remainder of the regulation shall not be affected.
In other places, where the regulation provides additional
guidance to carry out the PWFA, including examples of reasonable
accommodations, following Congress's intent regarding the
severability of the provisions of the statute, it is the
Commission's intent that if any of those regulatory provisions or
the application of those provisions to particular persons or
circumstances is held invalid or found to be unconstitutional, the
remainder of the regulation and the application of that provision of
the regulation to other persons or circumstances shall not be
affected. For example, if Sec. 1636.3(j)(4) is held to be invalid
or unconstitutional, it is the Commission's intent that the
remainder of the regulation shall not be affected.
[FR Doc. 2023-17041 Filed 8-7-23; 11:15 am]
BILLING CODE 6570-01-P
