29 CFR Part 1636 — Pregnant Workers Fairness Act

PART 1636—PREGNANT WORKERS FAIRNESS ACT Authority: 42 U.S.C. 2000gg et seq. Source: 89 FR 29182, Apr. 19, 2024, unless otherwise noted. § 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 make reasonable accommodation to the known limitations of a qualified employee related to pregnancy, childbirth, or related medical conditions, absent undue hardship; (2) Prohibits a covered entity from requiring a qualified employee 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 reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee; (4) Prohibits a covered entity from requiring a qualified employee to take leave if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee; (5) Prohibits a covered entity from taking adverse actions in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions; (6) Prohibits discrimination against an employee for opposing unlawful discrimination under the PWFA or participating in a proceeding under the PWFA; (7) Prohibits coercion of individuals in the exercise of their rights under the PWFA; and (8) Provides remedies for individuals whose rights under the PWFA are violated. § 1636.2 Definitions—general. (a) Commission (b) Covered entity respondent (1) Employer, (2) Employing office, (3) An entity employing a State employee (or the employee of a political subdivision of a State) 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 (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) [Reserved] (3) A covered employee (including an applicant), as defined in 3 U.S.C. 411(c); (4) A State employee (including an applicant) (or the employee or applicant of a political subdivision of a State) 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 § 1636.3 Definitions—specific to the PWFA. (a) Known limitation. Known limitation (1) Known, (2) Limitation (b) Pregnancy, childbirth, or related medical conditions. (c) Employee's representative. Employee's representative (d) Communicated to the employer. Communicated to the employer, (1) The communication may be made orally, in writing, or by another effective means. (2) The communication need not be in writing, be in a specific format, use specific words, or be on a specific form in order for it to be considered “communicated to the employer.” (e) Consideration 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 has a limitation. (f) Qualified employee. Qualified employee (1) An employee who, with or without reasonable accommodation, can perform the essential functions of the employment position. 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 shall be considered qualified if they cannot perform one or more essential functions if: (i) Any inability to perform an essential function(s) 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. This determination is made on a case-by-case basis. If the employee is pregnant, it is presumed that the employee could perform the essential function(s) in the near future because they could perform the essential function(s) within generally 40 weeks of its suspension; and (iii) The inability to perform the essential function(s) can be reasonably accommodated. This may be 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. Essential functions (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 that would be spent on the job performing the function during the time the requested accommodation will be in effect; (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. (i) Modifications or adjustments to a job application process that enable a qualified applicant with a known limitation under the PWFA to be considered for the position such qualified applicant desires; (ii) 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 with a known limitation under the PWFA to perform the essential functions of that position; (iii) Modifications or adjustments that enable a covered entity's employee with a known limitation under the PWFA to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without known limitations; or (iv) Temporary suspension of essential function(s) and/or modifications or adjustments that permit the temporary suspension of essential function(s). (2) To request a reasonable accommodation, the employee or the employee's representative need only communicate to the covered entity that the employee needs an adjustment or change at work due to their limitation (a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions). (i) The communication may be made to any of the individuals in paragraph (d) of this section. The provisions of paragraphs (d)(1) and (2) of this section, which define what it means to communicate a limitation to a covered entity, apply to communications under this paragraph (h)(2). (ii) An employee's request does not have to identify a medical condition, whether from paragraph (b) of this section or otherwise, or use medical terms. (3) 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. (1) Making existing facilities used by employees readily accessible to and usable by employees 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 or carrying; modifying the work environment; providing seating for jobs that require standing, or allowing 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 unpaid leave for reasons including, but not limited to, recovery from childbirth, miscarriage, stillbirth, or medical conditions related to pregnancy or childbirth, or 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, remote work, or change of work site; adjustments to allow an employee to work without increased pain or increased risk to the employee's health or the health of the pregnancy; temporarily suspending one or more essential functions of the position; providing a reserved parking space if the employee is otherwise entitled to use employer-provided parking; and other similar accommodations for employees with known limitations under the PWFA. (3) The reasonable accommodation of leave includes, but is not limited to, the examples in paragraphs (i)(3)(i) through (iii) of this section. (i) The ability to use paid leave (whether accrued, short-term disability, or another employer benefit) or unpaid leave, including, but not limited to, leave during pregnancy; to recover from childbirth, miscarriage, stillbirth, or other related medical conditions; 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 (whether accrued, short-term disability, or another employer benefit) or unpaid leave for a known limitation under the PWFA; and (iii) The ability to choose whether to use paid leave (whether accrued, short-term disability or another employer benefit) or unpaid leave to the extent that the covered entity allows employees using leave for reasons not related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions to choose between the use of paid leave and unpaid leave. (4) Reasonable accommodation related to lactation includes, but is not limited to: (i) Breaks, a space for lactation, and other related modifications as required under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) (Pub. L. 117-328, Div. KK, 136 Stat. 4459, 6093 (2022)), if not otherwise provided under the PUMP Act; (ii) 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 a place other than a bathroom; that it is shielded from view and free from intrusion; 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; (iii) Accommodations related to nursing during work hours (where the regular location of the employee's workplace makes nursing during work hours a possibility because the child is in close proximity); and (iv) Other reasonable accommodations, including those listed in paragraphs (i)(1) through (3) of this section. (5) The temporary suspension of one or more essential functions of the position in question, as defined in paragraph (g) of this section, is a reasonable accommodation if an employee with a known limitation under the PWFA is unable to perform one or more essential functions with or without a reasonable accommodation and the conditions set forth in paragraph (f)(2) of this section are met. (j) Undue hardship In general. (2) Factors to be considered. (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) Temporary suspension of an essential function(s). (i) The length of time that the employee 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 to accomplish; (iii) The nature of the essential function(s), including its frequency; (iv) Whether the covered entity has provided other employees in similar positions who are unable to perform the essential function(s) of their position with temporary suspensions of the essential function(s); (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. (i) Allowing an employee to carry or keep water near and drink, as needed; (ii) Allowing an employee to take additional restroom breaks, as needed; (iii) Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (iv) Allowing an employee to take breaks to eat and drink, as needed. (k) Interactive process. Interactive process (l) Limits on supporting documentation. (i) When the physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation), and the adjustment or change at work needed due to the limitation are obvious and the employee provides self-confirmation as defined in paragraph (l)(4) of this section; (ii) When the employer already has sufficient information to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an adjustment or change at work due to the limitation; (iii) When the employee is pregnant and seeks one of the modifications listed in paragraphs (j)(4)(i) through (iv) of this section due to a physical or mental condition related to, affected by, or arising out of pregnancy (a limitation) and the employee provides self-confirmation as defined in paragraph (l)(4) of this section; (iv) When the reasonable accommodation is related to a time and/or place to pump at work, other modifications related to pumping at work, or a time to nurse during work hours (where the regular location of the employee's workplace makes nursing during work hours a possibility because the child is in close proximity), and the employee provides self-confirmation, as defined in paragraph (l)(4) of this section; or (v) When the requested accommodation is available to employees without known limitations under the PWFA pursuant to a covered entity's policies or practices without submitting supporting documentation. (2) When it is reasonable under the circumstances, based on paragraph (l)(1) of this section, to seek supporting documentation, the covered entity is limited to seeking reasonable documentation. (i) Reasonable documentation (A) Confirm the physical or mental condition ( i.e., (B) Confirm that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with paragraph (l)(2)(i)(A) of this section, “a limitation”); and (C) Describe the adjustment or change at work that is needed due to the limitation. (ii) Covered entities may not require that supporting documentation be submitted on a specific form. (3) When it is reasonable under the circumstances, based on paragraph (l)(1) of this section, to seek supporting documentation, a covered entity may require that the reasonable documentation comes from a health care provider, which may include, but is not limited to: doctors, midwives, nurses, nurse practitioners, physical therapists, lactation consultants, doulas, occupational therapists, vocational rehabilitation specialists, therapists, industrial hygienists, licensed mental health professionals, psychologists, or psychiatrists. The health care provider may be a telehealth provider. The covered entity may not require that the health care provider submitting documentation be the provider treating the condition at issue. The covered entity may not require that the employee seeking the accommodation be examined by a health care provider selected by the covered entity. (4) Self-confirmation § 1636.4 Nondiscrimination with regard to reasonable accommodations related to pregnancy. (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, 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 providing a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee 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) The length of time that the accommodation is needed. If the accommodation is needed for a short time, unnecessary delay in providing it may effectively mean failure to provide the accommodation; (iv) How much the employee and the covered entity each contributed to the delay; (v) Whether the covered entity was engaged in actions related to the reasonable accommodation request during the delay; (vi) Whether the accommodation was or would be simple or complex to provide. There are certain accommodations, set forth in § 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 (vii) Whether the covered entity offered the employee an interim reasonable accommodation during the interactive process or while waiting for the covered entity's response. For the purposes of this factor, the interim reasonable accommodation should be one that allows the employee to continue working. Leave will not be considered an interim reasonable accommodation supporting this factor, unless the employee selects or requests leave as an interim reasonable accommodation. (2) An employee with known limitations related to pregnancy, childbirth, or related medical conditions is not required to accept an accommodation. However, if such employee rejects a reasonable accommodation that is necessary to enable the employee to perform an essential function(s) of the position held or desired or to apply for the position, or rejects the temporary suspension of an essential function(s) if the employee is qualified under § 1636.3(f)(2), and, as a result of that rejection, cannot perform an essential function(s) of the position, or cannot apply, the employee will not be considered “qualified.” (3) A covered entity cannot justify failing to provide a reasonable accommodation or the unnecessary delay in providing a reasonable accommodation to a qualified employee with known limitations related to pregnancy, childbirth, or related medical conditions based on the employee failing to provide supporting documentation, unless: (i) The covered entity seeks the supporting documentation; (ii) Seeking the supporting documentation is reasonable under the circumstances as set out in § 1636.3(l)(1); (iii) The supporting documentation is “reasonable documentation” as defined in § 1636.3(l)(2); and (iv) The covered entity provides the employee sufficient time to obtain and provide the supporting documentation. (4) When choosing among effective accommodations, the covered entity must choose an accommodation that provides the qualified employee with known limitations related to pregnancy, childbirth, or related medical conditions 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 employee without a known limitation who is similarly situated. The similarly situated average employee without a known limitation may include the employee requesting an accommodation at a time prior to communicating the limitation. (b) It is an unlawful employment practice for a covered entity to require a qualified employee 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 in § 1636.3(k). (c) It is an unlawful employment practice for a covered entity to deny employment opportunities to a qualified employee 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. (d) It is an unlawful employment practice 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 paragraph (d)(1) of this section prohibits 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 an unlawful employment practice for a covered entity: (1) To take 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 the pregnancy, childbirth, or related medical conditions of the employee. (2) Nothing in paragraph (e)(1) of this section limits the rights available under 42 U.S.C. 2000gg-2(f). § 1636.5 Remedies and enforcement. (a) Employees covered by Title VII of the Civil Rights Act of 1964 In general. et seq., et seq., (2) Costs and fees. (3) Damages. (b) [Reserved] (c) Employees covered by Chapter 5 of Title 3, United States Code In general. (2) Costs and fees. (3) Damages. (d) Employees covered by Government Employee Rights Act of 1991 In general. (2) Costs and fees. (3) Damages. (e) Employees covered by Section 717 of the Civil Rights Act of 1964 In general. (2) Costs and fees. (3) Damages. (f) Prohibition against retaliation Prohibition against retaliation. (i) An employee need not be a qualified employee with a known limitation under the PWFA 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 does not actually have to be deterred from exercising or enjoying rights under the PWFA in order for the retaliation to be actionable. (2) Prohibition against coercion. (i) An individual need not be a qualified employee with a known limitation under the PWFA to bring an action under this paragraph (f)(2). (ii) 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. (3) Remedy. (g) Limitation on monetary damages. § 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. § 1636.7 Relationship to other laws. (a) In general. (2) The PWFA and this part 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. (1) Nothing in 42 U.S.C. 2000gg-5(b) or this part should be interpreted to limit a covered entity's rights under the U.S. Constitution. (2) Nothing in 42 U.S.C. 2000gg-5(b) or this part should be interpreted to limit an employee's rights under other civil rights statutes. § 1636.8 Severability. (a) The Commission intends that, 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) The Commission intends that, if any provision of this part that uses the same language as the statute, or the application of that provision to particular persons or circumstances, is held invalid or found to be unconstitutional, the remainder of this part and the application of that provision to other persons or circumstances shall not be affected. (c) The Commission intends that, if any provision of this part or the interpretive guidance in appendix A to this part that provides additional guidance to implement 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 this part or the interpretive guidance 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 I. Introduction 1. The Pregnant Workers Fairness Act (PWFA) requires a covered entity to provide reasonable accommodations to a qualified employee'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. Although employees affected by pregnancy, childbirth, or related medical conditions have certain rights under existing civil rights laws, including Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. 2000e et seq., et seq., 1 2 1 See 2 2. The PWFA, at 42 U.S.C. 2000gg-3, directs the U.S. Equal Employment Opportunity Commission (EEOC or Commission) to promulgate regulations to implement the PWFA. 3. This Interpretive Guidance addresses the major provisions of the PWFA and its regulation and explains the major concepts pertaining to nondiscrimination with respect to reasonable accommodations for known limitations (physical or mental conditions related to, affected by, or arising out of 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. II. General Information and Terms Used in the Regulation and Interpretive Guidance 1. The PWFA at 42 U.S.C. 2000gg(3) uses the term “employee (including an applicant)” in its definition of “employee.” 3 4 5 6 3 4 Robinson Shell Oil Co., 5 6 2. This Interpretive Guidance contains many examples to illustrate situations under the PWFA. The examples do not, and are not intended to, cover every limitation or possible accommodation under the PWFA. Depending on the facts in the examples, the same facts could lead to claims also being brought under other statutes that the Commission enforces, such as Title VII and the ADA. Moreover, the situations in specific examples could implicate other Federal laws, including, but not limited to, the Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq. et seq. 7 8 7 8 See Enforcement Guidance: Workers' Compensation and the ADA, Enforcement Guidance: Workers' Compensation https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada. Enforcement Guidance: Workers' Compensation III. 1636. Definitions—Specific to the PWFA 1636.3(a) Known Limitation 1. Section 1636.3(a) reiterates the definition of “known limitation” from 42 U.S.C. 2000gg(4) of the PWFA and then provides definitions for the operative terms. 1636.3(a)(1) Known 2. Paragraph (a)(1) adopts the definition of “known” from the PWFA and thus defines it to mean that the employee, or the employee's representative, has communicated the limitation to the covered entity. 9 9 1636.3(a)(2) Limitation 3. Paragraph (a)(2) adopts the definition of “limitation” from 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. 10 11 10 Id. 11 4. The definition of “limitation” also includes when an employee is seeking health care related to the pregnancy, childbirth, or a related medical condition itself. Under the ADA, when an individual has an actual or a record of a disability, employers often may be required to provide the reasonable accommodation of leave so that an employee can obtain medical treatment. 12 13 14 12 Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, Enforcement Guidance on Reasonable Accommodation http://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada. 13 See, e.g., Prenatal Care, https://www.womenshealth.gov/a-z-topics/prenatal-care Optimizing Postpartum Care https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-postpartum-care Protecting and Expanding Medicaid to Improve Women's Health https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2021/06/protecting-and-expanding-medicaid-to-improve-womens-health 14 See https://www.youtube.com/watch?v=p6Ie2S9sTxs; see also id. id. id. id. 5. The physical or mental condition (the limitation) required to trigger the obligation to provide a reasonable accommodation under the PWFA does not need to meet the definition of a “disability” under the ADA. 15 16 15 16 See 6. The PWFA does not create a right to reasonable accommodation based on an individual's association with someone else who may have a PWFA-covered limitation. Nor is a qualified employee entitled to accommodation because they have a physical or mental condition related to, affected by, or arising out of someone else's pregnancy, childbirth, or related medical conditions. For example, a spouse experiencing anxiety due to a partner's pregnancy is not covered by the PWFA. Time for bonding or time for childcare also is not covered by the PWFA. 7. Whether an employee 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 8. The PWFA's use of the inclusive terms “related to, affected by, or arising out of” 17 17 See 9. Whether a physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions will be apparent in the majority of cases. Pregnancy and childbirth cause systemic changes that not only create new physical and mental conditions but also can exacerbate preexisting conditions and can cause additional pain or risk. 18 18 See, e.g., 10. 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, affected by, or arising out of 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, affected by, or arising out of pregnancy, because lifting is associated with low back pain and musculoskeletal disorders that may be exacerbated by physical changes associated with pregnancy. 19 19 Employment Considerations During Pregnancy and the Postpartum Period https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/04/employment-considerations-during-pregnancy-and-the-postpartum-period. 11. The Commission recognizes that some physical or mental conditions (which can be “limitations” as defined by the PWFA 20 20 12. 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 conditions resolve, the physical or mental condition remains, evolves, or worsens. To confirm whether the employee's physical or mental condition is still related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, the employer and the employee can engage in the interactive process. 13. There will be situations where an individual with a physical or mental condition that is no longer related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions has an “actual” or “record of” disability under the ADA. In those situations, an individual may seek an accommodation under the ADA and the reasonable accommodation process would follow the ADA. 21 21 See, e.g., 14. Finally, there may be situations where the pregnancy, childbirth, or related medical conditions exacerbate existing conditions that may be disabilities under the ADA. In those situations, an employee can seek an accommodation under the PWFA or the ADA, or both statutes. 1636.3(b) Pregnancy, Childbirth, or Related Medical Conditions 15. The PWFA uses the term “pregnancy, childbirth, or related medical conditions,” which appears in Title VII's definition of “sex.” 22 23 22 See 23 See, e.g., Tex. Dep't of Hous. & Cmty. Affs. Inclusive Cmtys. Project, Inc., Reading Law: The Interpretation of Legal Texts Bragdon Abbott, Lorillard Pons, Hall U.S. Dep't of Agric., Reading Law: The Interpretation of Legal Texts 16. The non-exhaustive list of examples in § 1636.3(b) for the definition of “pregnancy” and “childbirth” includes current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatments, and the use of contraception), and labor and childbirth (including vaginal delivery and cesarean section). 24 24 Enforcement Guidance on Pregnancy Discrimination and Related Issues, Enforcement Guidance on Pregnancy Discrimination https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues see, e.g., Kocak Cmty. Health Partners of Ohio, Inc., Piraino Int'l Orientation Res., Inc., Pacourek Inland Steel Co., Donaldson Am. Banco Corp., Inc., Neessen Arona Corp., Commission Decision on Coverage of Contraception, https://www.eeoc.gov/commission-decision-coverage-contraception Cooley DaimlerChrysler Corp., Erickson Bartell Drug Co., 17. “Related medical conditions” are medical conditions that relate to pregnancy or childbirth. 25 25 Enforcement Guidance on Pregnancy Discrimination, supra 18. There are some medical conditions where the relation to pregnancy will be readily apparent. They can include, but are not limited to, lactation (including breastfeeding and pumping), miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, and HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome. 26 27 26 Id.; see also Hicks City of Tuscaloosa, EEOC Houston Funding II, Ltd., Doe C.A.R.S. Prot. Plus, Inc., Turic Holland Hosp., Inc., Carney Martin Luther Home, Inc., Ducharme Crescent City Déjà Vu, LLC, as reprinted in 27 See supra 19. However, simply because a condition is listed as one that may be a related medical condition does not mean it necessarily meets the definition of “related medical conditions” for the purposes of the PWFA. To be a related medical condition for the PWFA, the employee's medical condition must relate to pregnancy or childbirth. If an employee has a condition but, in their situation, it does not relate to pregnancy or childbirth, the condition is not covered under the PWFA. For example, if an employee who gave birth 2 weeks ago is vomiting because of food poisoning, that medical condition is not related to pregnancy or childbirth and the employee is not eligible on that basis for a PWFA reasonable accommodation. 20. Related medical conditions may include conditions that existed before pregnancy or childbirth and for which an individual may already receive an ADA reasonable accommodation. Pregnancy or childbirth may exacerbate the condition, such that additional or different accommodations are needed. For example, an employee who received extra breaks to eat or drink due to Type 2 diabetes before pregnancy (an ADA reasonable accommodation) may need additional accommodations during pregnancy to monitor and manage the diabetes more closely to avoid or minimize adverse health consequences to the employee or the pregnancy. As another example, an employee may have had high blood pressure that could be managed with medication prior to pregnancy, but once the employee is pregnant, the high blood pressure may pose a risk to the employee or their pregnancy such that the employee needs bed rest. In these situations, an employee could request a continued or an additional accommodation under the ADA and/or an accommodation under the PWFA. 21. The Commission emphasizes that the list of “pregnancy, childbirth or related medical conditions” in § 1636.3(b) is non-exhaustive; to receive an accommodation a qualified employee does not have to specify a condition on this list or use medical terms to describe a condition. 22. When an employer has received a request for an accommodation under the PWFA, the employer and employee can engage in the interactive process, if necessary, in order to confirm whether a medical condition is related to pregnancy or childbirth. 1636.3(c) Employee's Representative 23. The limitation may be communicated to the covered entity by the employee or the employee's representative. The term “employee's representative” encompasses any representative of the employee, including a family member, friend, union representative, health care provider, or other representative. In most instances, the Commission expects that the representative will have the employee's permission before communicating the limitation to the covered entity, but there may be some situations, for example if the employee is incapacitated, where that is not the case. Once the covered entity is made aware of the limitation, the representative's participation in any aspect of the reasonable accommodation process is at the discretion of the employee, and the employee may decide not to have the representative participate at any time. In most instances, the Commission expects that the covered entity will engage directly with the employee, even where the employee's representative began the process, but acknowledges that in some situations, for example, when the employee is incapacitated or the representative is the employee's attorney, the covered entity will need to continue to engage with the representative rather than the employee. 1636.3(d) Communicated to the Employer and 1636.3(h)(2) How To Request a Reasonable Accommodation 24. Section 1636.3(d) and (h)(2) sets out how an employee informs a covered entity of their limitation in order to make it “known” and how an employee requests a reasonable accommodation. In practice, the Commission expects that these actions—communicating the limitation to the employer and requesting a reasonable accommodation—will take place at the same time. 25. Informing the employer of the limitation and requesting a reasonable accommodation should not be complicated or difficult. The covered entity must permit an employee to do both through various avenues and means, as set forth in § 1636.3(d). Given that many accommodations requested under the PWFA will be straightforward—like additional bathroom breaks or access to water—the Commission emphasizes the importance of employees being able to obtain accommodations by communicating with the employer representative(s) with whom they would normally consult if they had questions or concerns about work matters. Employees should not be made to wait for a reasonable accommodation, especially one that is simple and imposes negligible cost or is temporary, because they spoke to the “wrong” supervisor. The individuals to whom an employee can communicate to seek accommodation include persons with supervisory authority for or who regularly direct the employee's work (or the equivalent for the applicant) and human resources personnel. Depending on the situation, employees also may communicate with other appropriate officials such as an agent of the employer (e.g., a search firm, staffing agency, or third-party benefits administrator). 26. Section 1636.3(d)(1) and (2) explains that the communication informing the covered entity of the limitation does not need to be in writing, be in a specific format, use specific words, or be on a specific form in order for it to be considered “communicated to the employer.” 27. Just as the communication informing the covered entity of the limitation does not need to be in writing or use specific phrases, the same is true for the request for a reasonable accommodation. Employees may inform the employer of the limitation and request an accommodation in a conversation or may use another mode of communication to inform the employer. 28 29 i.e., 28 See Enforcement Guidance on Reasonable Accommodation, supra 29 See id. 28. The requirement that no specific words or phrases are necessary to communicate a limitation or request a reasonable accommodation includes not needing to specifically identify whether a condition is “pregnancy, childbirth, or related medical conditions” or whether it is a “physical or mental condition.” The statutory definition of “limitation” uses the words “condition” and “related” twice (“known limitation” means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.). 30 31 32 30 31 32 Id. 29. Many, but not all, conditions related to pregnancy and childbirth can be both a “limitation” and a “related medical condition.” For example, hyperemesis gravidarum experienced during pregnancy is a “condition” that could be classified as either a “limitation” (nausea and vomiting that arises out of pregnancy), or a “related medical condition” (a condition that is related to pregnancy); similarly, incontinence could be a “limitation” (for example, when someone who is pregnant becomes less able to comfortably hold urine and thus requires more frequent bathroom breaks), or a “related medical condition” (for example, when the medical condition of incontinence arises out of or is exacerbated as a result of pregnancy or childbirth). 33 33 30. Because the statute uses the same term (“condition”) to define both “limitation” and “related medical conditions” and because some “conditions” can be both a “limitation” and a “related medical condition,” an employee does not have to identify whether a particular condition is a “limitation” or a “related medical condition” when requesting a reasonable accommodation. For example, where an employee is experiencing nausea and vomiting in connection with a pregnancy, the employee need not determine whether this is a “limitation” or a “related medical condition” in order to request an accommodation under the PWFA. Similarly, there is no need for the employer to make such a determination before granting an accommodation under the PWFA. 31. Finally, PWFA limitations also may be ADA disabilities. 34 34 see also infra 1636.7(a)(1) The PWFA and the ADA. 1636.3(e) Consideration of Mitigating Measures 32. There may be steps that an employee can take to mitigate, or lessen, the effects of a known limitation such as taking medication, getting extra rest, or using a reasonable accommodation. Paragraph (e) of § 1636.3 explains that the ameliorative, or positive, effects of “mitigating measures,” as that term is defined in the ADA, 35 36 35 See 36 See see also 1636.3(f) Qualified Employee 33. An employee must meet the definition of “qualified” in the PWFA in one of two ways. 37 38 39 37 38 39 34. For both definitions of qualified, 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. 40 41 40 See 41 See 1636.3(f)(1) Qualified Employee—With or Without Reasonable Accommodation 35. The first way that an employee can be “qualified” under 42 U.S.C. 2000gg(6) is if they can perform the essential functions of their job with or without reasonable accommodation, which is the same language as in the ADA and is interpreted accordingly. “Reasonable” has the same meaning as under the ADA on this topic—an accommodation that “seems reasonable on its face, i.e., 42 42 US Airways, Inc. Barnett, see, e.g., Shapiro Twp. of Lakewood, Barnett Osborne Baxter Healthcare Corp., Barnett EEOC United Airlines, Inc., Barnett see also Enforcement Guidance on Reasonable Accommodation, supra Barnett “Qualified” for the Reasonable Accommodation of Leave 36. 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 leave (e.g., intermittent leave, part-time work, or a period of leave or time off). Thus, an employee who needs some form of leave to recover from a known limitation related to pregnancy, childbirth, or related medical conditions can readily meet the definition of “qualified” under the first part of the PWFA definition 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. 43 43 1636.3(f)(2) Qualified Employee—Temporary Suspension of an Essential Function(s) 37. The PWFA provides that an employee can meet the definition of “qualified” even if they cannot perform one or more essential functions of the position in question with or without a reasonable accommodation, 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. 44 44 see 38. Based on the overall structure and wording of the statute, the second part of the definition of “qualified” is relevant only when an employee cannot perform one or more essential functions of the job in question, even with a reasonable accommodation, due to a known limitation under the PWFA. It is not relevant in any other circumstance. If the employee can perform the essential functions of the position with or without a reasonable accommodation, the first definition of “qualified” applies ( i.e., i.e., 39. By contrast, some examples of situations where the second part of the definition of “qualified” 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 employee to perform that function without lifting more than 20 pounds; and (2) a pregnant police officer is unable because of their pregnancy to perform patrol duties during the third through ninth months of pregnancy, patrol duties are an essential function of the job, and there is not a reasonable accommodation that will allow the employee to perform the patrol duties. 40. This definition is solely concerned with determining whether an individual is “qualified.” An employer may still defend the failure to provide the reasonable accommodation based on undue hardship. 1636.3(f)(2)(i) Temporary 41. “Temporary” means that the need to suspend one or more essential functions is “lasting for a limited time, 45 45 Temporary, Merriam-Webster.com https://www.merriam-webster.com/dictionary/temporary Robert Board of County Commissioners of Brown County, See 1636.3(f)(2)(ii) In the Near Future 42. An employee can be qualified under the exception in 42 U.S.C. 2000gg(6)(A)-(C) if they could perform the essential function(s) “in the near future.” In explaining the inclusion of this additional definition of “qualified,” the House Report analogized the suspension of an essential function under the PWFA to cases under the ADA regarding leave; “in the near future” is a term some courts have used in the context of determining whether an employee can perform the essential functions of the job with a reasonable accommodation of leave and, therefore, is qualified under the ADA. 46 47 48 46 infra, 47 See, e.g., Herrmann Salt Lake City Corp., Cisneros Wilson, overruled on other grounds by Bd. of Trs. of Univ. of Ala. Garrett, 48 43. Pregnancy is a temporary condition with an ascertainable end date; the request to temporarily suspend an essential function(s) due to a current pregnancy will never be indefinite and will not be more than generally 40 weeks. Thus, for a current pregnancy, § 1636.3(f) defines “in the near future” to mean generally 40 weeks from the start of the temporary suspension of an essential function(s). To define “in the near future” as less than generally 40 weeks— i.e., 49 49 See id. id. id. 44. The Commission emphasizes that the definition in § 1636.3(f)(2)(ii) does not mean that the essential function(s) always must be suspended for 40 weeks, or that if an employee seeks the temporary suspension of an essential function(s) for 40 weeks the employer must automatically grant it. 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 40 weeks for a pregnant employee will not, on its own, render an employee unqualified under the PWFA. 45. For conditions other than a current pregnancy, the Commission is not setting a specific length of time for “in the near future” because, unlike a current pregnancy, there is not a consistent measure of how long these diverse conditions can generally last, and thus, what “in the near future” might mean in different instances. 46. The Commission notes that beyond an agreement that an indefinite amount of time does not meet the standard of “in the near future,” how long a period of leave may be under the ADA and still be a reasonable accommodation (thus, allowing the individual to remain qualified) varies. 50 51 52 50 See, e.g., Robert, Epps City of Pine Lawn, see also Blanchet Charter Commc'ns, LLC, Cleveland Fed. Express Corp., Garcia-Ayala Lederle Parenterals, Inc., Nunes Wal-Mart Stores, Inc., Cayetano Fed. Express Corp., Durrant Chemical/Chase Bank/Manhattan Bank, N.A., 51 See, e.g., Severson Heartland Woodcraft, Inc., 52 see, e.g., Pregnancy-Related Deaths: Data from Maternal Mortality Review Committees in 36 U.S. States, 2017-2019 https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html 47. Further, the Commission recognizes that employees may need an essential function(s) temporarily suspended because of a current pregnancy; take leave to recover from childbirth; and, upon returning to work, need the same essential function(s) or a different one temporarily suspended due to the same or a 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 determination of whether an individual is qualified under the PWFA should be made at the time of the employment decision, 53 54 53 See 54 48. Determining “in the near future” in the definition of “qualified” when the employment decision is made is necessary because it would often be difficult, if not impossible, for a pregnant employee to predict what their limitations (if any) will be when returning to work after pregnancy. While pregnant, they may not know whether and, if so, for how long, they will have a known limitation or need an accommodation. They also may not know whether an accommodation after returning to work will require the temporary suspension of an essential function(s), and, if so, for how long. All of these questions may be relevant under the PWFA's second definition of “qualified.” 49. Leave as a reasonable accommodation (e.g., for recovery from pregnancy, childbirth, or related medical conditions or any other purpose) does not count as time when an essential function(s) is suspended and, thus, is not relevant for the second part of the definition of “qualified” (§ 1636.3(f)(2)). 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(s), only the first part of the definition of “qualified” is relevant (§ 1636.3(f)(1)). In the case of leave, the question would be whether the employee, 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 employees, 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 under an employer's policy. 55 55 see infra 1636.3(h) Particular Matters Regarding Leave as a Reasonable Accommodation. 1636.3(f)(2)(iii) Can Be Reasonably Accommodated 50. The second part of the PWFA's definition of “qualified” further requires that the suspension “can be reasonably accommodated.” 56 57 56 57 See 51. Examples Regarding § 1636.3(f)(2): Example #1/Definition of “Qualified”: 1. Known limitation and request for accommodation: Akira's need to avoid exposure to chemicals is a physical or mental condition related to, affected by, or arising out pregnancy, childbirth, or related medical conditions; Akira needs an adjustment or change at work due to the limitation; and Akira has communicated this information to her employer. 2. Qualified: If modifications that would allow Akira to continue to perform the essential functions of her position (such as enclosing the chemicals, providing a local exhaust vent, or providing additional personal protective gear) are not effective or cause an undue hardship, Akira can still be qualified under the definition that allows for a temporary suspension of an essential function(s). a. Akira's inability to perform the essential function(s) is temporary. b. Akira can perform the essential function(s) of her job in the near future because she is pregnant and needs an essential function(s) suspended for less than 40 weeks. c. Akira's inability to perform the essential function(s) may be reasonably accommodated. The employer can suspend the essential function(s) that requires her to work with the chemicals, while allowing her to do the remainder of her job. Example #2/Definition of “Qualified”: 1. Known limitation and request for accommodation: Lydia's lifting restriction is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; she needs an adjustment or change at work due to the limitation; and she has communicated this information to the employer. 2. Qualified: Lydia needs the temporary suspension of an essential function(s). a. Lydia's inability to perform the essential function(s) is temporary. b. Lydia can perform the essential function(s) of her job in the near future because Lydia is pregnant and needs an essential function(s) suspended for less than 40 weeks. c. Lydia's need to temporarily suspend an essential function(s) of her job may be reasonably accommodated through the existing light duty program. Example #3/Definition of “Qualified”: 1. Known limitation and request for accommodation: Olga's lifting restriction is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; she needs an adjustment or change at work due to the limitation; and she has communicated this information to the employer. 2. Qualified: Olga needs the temporary suspension of an essential function(s). a. Olga's inability to perform the essential function(s) is temporary. b. Olga can perform the essential function(s) of her job in the near future because she needs the essential function(s) suspended for 8 weeks. 58 58 See Cehrs Ne. Ohio Alzheimer's Rsch. Ctr., c. Olga's need to temporarily suspend an essential function(s) of her job may be reasonably accommodated by temporarily suspending the essential function(s) and temporarily assigning Olga to design or administrative duties. Example #4/Definition of “Qualified”: 1. Known limitation and request for accommodation: Elena's inability to sleep, anxiety, fatigue, dizziness, and blurred vision are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; she needs an adjustment or change at work due to the limitation; and she has communicated this information to the employer. 2. Qualified: Elena needs the temporary suspension of an essential function(s). a. Elena's inability to perform the essential function(s) is temporary. b. Elena can perform the essential function(s) of her job in the near future because she needs an essential function(s) suspended for 12 weeks. 59 59 See Criado IBM Corp., Durrant, Powers Polygram Holding, c. Elena's need to temporarily suspend an essential function(s) of her job may be reasonably accommodated by temporarily suspending the essential function(s) and temporarily assigning Elena to duties such as answering questions and selling merchandise at the visitor's center. Example #5/Definition of “Qualified”: 1. Known limitation and request for accommodation: Tamara's inability to grip objects and button clothing are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; she needs an adjustment or change at work due to the limitation; and she has communicated this information to the employer. 2. Qualified: Tamara needs the temporary suspension of an essential function(s). a. Tamara's inability to perform the essential function(s) is temporary. b. Tamara can perform the essential functions of her job in the near future because she needs an essential function(s) suspended for 16 weeks. 60 60 See Rascon U.S. W. Commc'ns, Inc., abrogated on other grounds by New Hampshire Maine, c. Tamara's need to temporarily suspend an essential function(s) of her job may be reasonably accommodated by temporarily suspending the essential function(s) and temporarily assigning Tamara to duties such as greeting and assisting customers. 1636.3(g) Essential Functions 52. Section 1636.3(g) adopts the Commission's definition of “essential functions” contained in the regulation implementing the ADA. 61 62 63 61 See 62 See 63 See 1636.3(h) Reasonable Accommodation—Generally 1636.3(h)(1) Definition of Reasonable Accommodation 53. The statute at 42 U.S.C. 2000gg(7) states that the term “reasonable accommodation” has the meaning given to it in section 101 of the ADA 64 65 i.e., 66 67 64 See 65 See 66 See Enforcement Guidance on Reasonable Accommodation, supra Barnett, 67 See Enforcement Guidance on Reasonable Accommodation, supra 54. Under the PWFA, “reasonable accommodation” has the same definition as under the ADA, with the exceptions noted in items (1) through (3) of this paragraph. 68 69 68 See 69 See See See also Compliance Manual Section 613 Terms, Conditions, and Privileges of Employment, Compliance Manual on Terms, Conditions, and Privileges of Employment https://www.eeoc.gov/laws/guidance/cm-613-terms-conditions-and-privileges-employment 55. Because the PWFA also provides for reasonable accommodations when a qualified employee temporarily cannot perform one or more essential functions of a position but can meet the requirements of 42 U.S.C. 2000gg(6)(A)-(C), reasonable accommodations under the PWFA also include modifications or adjustments that allow a qualified employee with a known limitation to temporarily suspend one or more essential functions of the position. This can be either through the essential function(s) being suspended or through the essential function(s) being suspended and the employee doing other work as set out in § 1636.3(f)(2)(iii). 1636.3(h)(2) How To Request a Reasonable Accommodation 56. To request a reasonable accommodation, the employee (or the employee's representative) must communicate to the employer that they need an adjustment or change at work due to their known limitation (a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions). Section 1636.3(d) applies to communications to request a reasonable accommodation. An employee may use plain language and need not mention the PWFA. An employee does not have to use the phrases “reasonable accommodation,” “limitation,” “known limitation,” “qualified,” or “essential function”; use any medical terminology; provide a specific medical condition; use any other specific words or phrases; or put the explanation of the need for accommodation in the form of a request. 57. In these examples, the employee is communicating both their limitation and that they need an adjustment or change at work due to the limitation. The Commission expects that in the vast majority of cases these two communications will happen at the same time. All of these are examples of requests for reasonable accommodations under the PWFA. Example #6: Example #7: Example #8: Example #9: Example #10: Example #11: Alleviating Increased Pain or Risk to Health Due to the Known Limitation 58. One reason an employee may seek a reasonable accommodation is to alleviate increased pain or 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). 70 70 59. Examples Regarding Alleviating Pain or Risk to Health Due to the Known Limitation: Example #12/Alleviating Pain or Risk to Health: Example #13/Alleviating Pain or Risk to Health: Example #14/Alleviating Pain or Risk to Health: Example #15/Alleviating Pain or Risk to Health: Example #16/Alleviating Pain or Risk to Health: Example #17/Alleviating Pain or Risk to Health: Example #18/Alleviating Pain or Risk to Health: 71 71 Heat and Pregnant Women https://www.cdc.gov/disasters/extremeheat/heat_and_pregnant_women.html. Example #19/Alleviating Pain or Risk to Health: Particular Matters Regarding Leave as a Reasonable Accommodation 60. Under the PWFA, leave may be a reasonable accommodation. 72 73 74 72 73 See Enforcement Guidance on Reasonable Accommodation, supra See Employer-Provided Leave and the Americans with Disabilities Act, Technical Assistance on Employer-Provided Leave https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act. 74 See supra 61. The Commission recognizes that there may be situations where an employer provides a reasonable accommodation to a qualified pregnant employee (e.g., a stool, additional breaks, or temporary suspension of one or more essential functions) under the PWFA, and then the employee requests leave as a reasonable accommodation (e.g., 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 definition of “qualified” under § 1636.3(f)(2). 75 75 62. A qualified 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. 76 i.e., 77 76 See Enforcement Guidance on Reasonable Accommodation, supra 77 See id. 63. Under the PWFA, an employer does not have to provide a reasonable accommodation if it causes an undue hardship—a significant difficulty or expense. Thus, if an employer can demonstrate that the impact of the leave requested as a reasonable accommodation poses an undue hardship under the factors set out in § 1636.3(j)(2)—for example, because of the impact of its length, frequency, or unpredictable nature, or because of another factor that causes significant difficulty or expense—it does not have to provide the requested leave under the PWFA. 64. Employees 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 to choose between these types of leave when they are using leave for reasons unrelated to pregnancy, childbirth, or related medical conditions. 78 79 78 79 See Enforcement Guidance on Reasonable Accommodation, supra Ensuring That Employees Are Not Penalized for Using Reasonable Accommodations 65. Generally, covered entities are not required to lower production standards for qualified employees receiving accommodations under the PWFA. 80 81 80 See id. 81 See id. 66. In addition, covered entities making reasonable accommodations must ensure that their ordinary workplace policies or practices—including, but not limited to, attendance policies, productivity quotas, and requirements for mandatory overtime—do not operate to penalize qualified employees for utilizing PWFA accommodations. 82 82 See id. 67. Similarly, policies that monitor employees 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 qualified employee was granted as a reasonable accommodation. This includes situations in which hours worked or time on task are used to measure traits like “productivity,” “focus,” “availability,” or “contributions.” For example, if, as a reasonable accommodation, a qualified employee is excused from working overtime, and “availability” or “contribution” is measured by an employee's overtime hours, a qualified employee should not be penalized in those categories. 68. If an accommodation under the PWFA involves the temporary suspension of an essential function(s) of the position, a covered entity may not penalize a qualified employee for not performing the essential function(s) that has been temporarily suspended. So, for example, a covered entity must not penalize a qualified employee for not meeting a production standard related to the performance of the essential function(s) that has been temporarily suspended. 69. Penalizing an employee in these situations could render the accommodation ineffective, thus making the covered entity liable for failing to make reasonable accommodation. 83 84 83 See Enforcement Guidance on Reasonable Accommodation, supra see also 84 70. The following examples illustrate situations where penalizing an employee may violate 42 U.S.C. 2000gg-1(1) (failing to make reasonable accommodation absent undue hardship), (5) (prohibiting employers from taking adverse action against an employee on account of the employee using a reasonable accommodation), and/or section 2000gg-2(f) (prohibiting retaliation). Example #20/Not Penalizing Employees: Example #21/Not Penalizing Employees: Example #22/Not Penalizing Employees: Personal Use 71. The obligation to provide reasonable accommodation under the PWFA, like that under the ADA, does not extend to the provision of adjustments or modifications that are primarily for the personal benefit of the qualified employee 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.” 85 85 See 72. 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 to help with sleeping because that is 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 difficulty sleeping because of the pregnancy, the employer is providing pillows for all employees required to sleep on-site, and the employee needs a modification of the pillows provided. All Services and Programs 73. Under the PWFA, as under the ADA, the obligation to make reasonable accommodations applies to all services and programs provided in connection with employment and to all non-work facilities provided or maintained by an employer for use by its employees, so that employees with known limitations can enjoy equal benefits and privileges of employment. 86 87 86 See id. 87 See id. Interim Reasonable Accommodations 74. An interim reasonable accommodation can be used when there is a delay in providing the reasonable accommodation. For example, an interim reasonable accommodation may be sought when: there is a sudden onset of a known limitation under the PWFA, sometimes as an emergency, including one that makes it unsafe, risky, or dangerous to continue performing the normal tasks of the job; while the interactive process is ongoing, such as when an employer is waiting for the arrival of ordered equipment; or when the employee is waiting for the employer's decision on the accommodation request. 75. Providing an interim reasonable accommodation is a best practice under the PWFA and may help limit a covered entity's exposure to liability under 42 U.S.C. 2000gg-1(1) (§ 1636.4(a)(1)), or 42 U.S.C. 2000gg-2(f) (§ 1636.5(f)). 76. For example, consider a situation where an employee lets their supervisor know that they are pregnant and need to avoid working with certain chemicals in the workplace. Given the chemicals and the fact that the employee is pregnant, the employee needs the change immediately. In this situation, the best practice is to provide the employee with an interim reasonable accommodation that meets the employee's needs or limitations and allows the employee to perform tasks for the benefit of the employer while the employer determines its response. This is the best possible situation for both the employer and the employee, and the one that the Commission strongly encourages. In addition, this type of interim reasonable accommodation could help mitigate a claim of delay by the employee. 88 88 • Require the employee to continue to work with the chemicals while the employer determines its response. In this situation, the employee would be forced to work outside of their restrictions. In addition to placing the employee in a situation that the PWFA was enacted to prevent—choosing between their health and the health of their pregnancy on one hand and a paycheck on the other—the covered entity may be risking liability under 42 U.S.C. 2000gg-1(1) (if there is an unnecessary delay in providing the accommodation), and/or State and Federal workplace health and safety laws. • Require the employee to take leave while the employer determines its response. In this situation, the employee is not exposed to the chemicals, so the risk is mitigated. However, depending on the facts, this option can have a severely detrimental effect on the employee—either because the leave is unpaid or because the employee is forced to use their paid leave. Meanwhile, the employee is unable to perform tasks for the employer. 77. Moreover, depending on the facts, requiring an employee to take unpaid leave or use their leave after they ask for an accommodation and are awaiting a response could lead to a violation of 42 U.S.C. 2000gg-2(f). For example, if the employee is put on unpaid leave, even though there is paid work that the employer reasonably could have given the employee, the employer's decision could be retaliatory because it might well dissuade a reasonable person from engaging in protected activity, such as asking for an accommodation under the PWFA. If the employer's actions were challenged, the employer would have to produce a legitimate, non-discriminatory reason for its actions. The employee could then show that the real reason for the action was retaliation. 89 89 See Enforcement Guidance on Retaliation and Related Issues, Enforcement Guidance on Retaliation https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues. 78. The possible connection between requiring leave as an interim reasonable accommodation and a potential violation of 42 U.S.C. 2000gg-2(f) is in keeping with the purposes of the PWFA. The PWFA recognizes that historically employees with limitations related to pregnancy, childbirth, or related medical conditions have been required to take leave to their detriment. Thus, 42 U.S.C. 2000gg-1(4) limits the use of leave as a reasonable accommodation, prohibiting employers from requiring qualified employees with known limitations to take leave as a reasonable accommodation where there is another reasonable accommodation that will allow them to remain at work that does not result in an undue hardship. 79. Examples Regarding Interim Reasonable Accommodations: Example #23/Interim Reasonable Accommodation: Example #24/Interim Reasonable Accommodation: Example #25/Interim Reasonable Accommodation: 80. Covered entities that do not provide interim reasonable accommodations are reminded that an unnecessary delay in making a reasonable accommodation, including in responding to the initial request, in the interactive process, or in providing the accommodation may result in a violation of the PWFA if the delay constitutes an unlawful failure to make reasonable accommodation, as set forth in 42 U.S.C. 2000gg-1(1) (§ 1636.4(a)(1)). 1636.3(i) Reasonable Accommodation—Examples 81. The definition of “reasonable accommodation” in § 1636.3(h)(1) tracks the meaning of the term from the ADA statute, regulation, and EEOC guidance documents. 90 91 90 See Enforcement Guidance on Reasonable Accommodation, supra 91 See, e.g., • Frequent breaks. The Commission has long construed the ADA to require additional breaks as a reasonable accommodation, absent undue hardship. 92 93 94 92 Enforcement Guidance on Reasonable Accommodation, supra see also 93 94 • Sitting/Standing. The Commission has recognized the provision of seating for jobs that require standing and standing for those that require sitting as potential reasonable accommodations under the ADA. 95 95 Enforcement Guidance on Reasonable Accommodation, supra see also • Schedule changes, part-time work, and paid and unpaid leave. 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 unpaid leave is a potential reasonable accommodation under the ADA. 96 97 96 see also Technical Assistance on Employer-Provided Leave, supra 97 See • Telework. Telework (or “remote work” or “work from home”) has been recognized by the Commission as a potential reasonable accommodation under the ADA. 98 98 See, e.g., Enforcement Guidance on Reasonable Accommodation, supra • Parking. Providing a reserved parking space if the employee is otherwise entitled to use employer-provided parking may be a reasonable accommodation to assist an employee who is experiencing fatigue or limited mobility related to, affected by, or arising out 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 Commission as a potential reasonable accommodation, even if the employer's light duty positions are normally reserved for those injured on-the-job and the person seeking a light duty position as an accommodation does not have an on-the-job injury. 99 99 See Enforcement Guidance: Workers' Compensation, supra see also id. Young United Parcel Serv., Inc., • Making existing facilities accessible or modifying the work environment. 100 101 102 100 See 101 See, e.g., Recommended Practices for Safety and Health Programs, https://www.osha.gov/safety-management/hazard-prevention 102 et seq., Field Assistance Bulletin No. 2023-02: Enforcement of Protections for Employees to Pump Breast Milk at Work https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-2.pdf; Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at Work https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers. See, e.g., Notice on Reasonable Break Time for Nursing Mothers, • Job restructuring. 103 104 103 See 104 See • Temporarily suspending one or more essential function(s). For some positions, this may mean that one or more essential function(s) 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 still 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. 105 105 See see also • Adjusting or modifying examinations or policies. 106 106 See see also 82. Pursuant to 42 U.S.C. 2000gg-3, the following are further examples of types of reasonable accommodations and how they can be analyzed. 107 107 For further examples, see the Job Accommodation Network (JAN), which provides free assistance regarding workplace accommodation issues. See generally https://askjan.org/ See Reproductive Health and The Workplace, https://www.cdc.gov/niosh/topics/repro/default.html Example #26/Telework: 1. Known limitation and request for reasonable accommodation: Gabriela's nausea and vomiting is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Gabriela needs an adjustment or change at work due to the limitation; Gabriela has communicated the information to the employer. 2. Qualified: Gabriela can perform the essential functions of the job with the reasonable accommodation of telework. 3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship. Example #27/Temporary Suspension of an Essential Function: 1. Known limitation and request for reasonable accommodation: Nisha's lifting restriction is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Nisha needs an adjustment or change at work due to the limitation; Nisha has communicated that information to the employer. 2. Qualified: Nisha is asking for the temporary suspension of an essential function. The suspension is temporary, and Nisha can perform the essential functions of the job “in the near future” (generally within 40 weeks). It appears that the inability to perform the function can be reasonably accommodated through its temporary suspension and Nisha's placement in the 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 #28: Example #29/Temporary Suspension of Essential Function(s): 1. Known limitation and request for reasonable accommodation: Fatima's sensitivity to heat, muscle weakness, and fatigue are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Fatima needs an adjustment or change at work due to the limitation; Fatima has communicated this information to the employer. 2. Qualified: Fatima is asking for the temporary suspension of an essential function. The suspension is temporary, and Fatima could perform the essential functions of the job in the near future (7 months). It appears that the inability to perform the essential function can be reasonably accommodated by temporarily assigning Fatima indoor work, such as sorting produce. 3. The employer must grant the accommodation of temporarily suspending the essential function (or another reasonable accommodation) absent undue hardship. Example #30/Assistance with Performing an Essential Function: 1. Known limitation and request for reasonable accommodation: Mei's lifting and carrying restrictions are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Mei needs an adjustment or change at work due to the limitation; Mei has communicated this information to the employer. 2. Qualified: Mei can perform the essential functions of the job with the reasonable accommodation of a dolly. 3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship. Example #31/Appropriate Uniform and Safety Gear: 1. Known limitation and request for reasonable accommodation: Ava's inability to wear the standard uniform and safety gear is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Ava needs an adjustment or change at work due to the limitation; Ava's representative has communicated this information to the employer. 2. Qualified: Ava can perform the essential functions of the job with the reasonable accommodation of appropriate gear. 3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship. Example #32/Temporary Suspension of Essential Function(s): 1. Known limitation and request for reasonable accommodation: Darina's inability to perform certain patrol duties is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Darina needs an adjustment or change at work due to the limitation; Darina has communicated this information to the employer. 2. Qualified: The suspension of the essential functions of patrol duties is temporary, and Darina can perform the essential functions of the job in the near future (within generally 40 weeks). It appears that the temporary suspension of the essential functions can be accommodated through the light duty program. 3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship. Example #33/Temporary Suspension of Essential Function(s): 1. Known limitation and request for reasonable accommodation: Rory's lifting restriction is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Rory needs an adjustment or change at work due to the limitation; Rory has communicated this information to the employer. 2. Qualified: The suspension of the essential function of lifting packages that weigh up to 10 pounds is temporary, and Rory can perform the essential function in the near future (6 months). It appears that the temporary suspension of the essential function could be accommodated by temporarily assigning her to a different line. 3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship. Example #34/Unpaid Leave: 1. Known limitation and request for reasonable accommodation: Tallah's need for time for recovery is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Tallah needs an adjustment or change at work due to the limitation; Tallah has communicated this information to the employer. 2. Qualified: After the reasonable accommodation of leave, Tallah will be able to perform the essential functions of the job with or without accommodation. 3. The employer must grant the accommodation of unpaid leave (or another reasonable accommodation) absent an undue hardship. Example #35/Unpaid Leave for Prenatal Appointments: 1. Known limitation and request for reasonable accommodation: Margot's need to attend health care appointments is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Margot needs an adjustment or change at work due to the limitation; Margot has communicated the information to the employer. 2. Qualified: Margot can perform the essential functions of the 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 #36/Unpaid Leave for Recovery from Childbirth: 1. Known limitation and request for reasonable accommodation: Sofia's need to recover from childbirth is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Sofia needs an adjustment or change at work due to the limitation; Sofia's representative has communicated this information to the employer. 2. Qualified: After the reasonable accommodation of leave, Sofia will be able to perform the essential functions of the job with or without reasonable accommodation. 3. The employer must grant the accommodation of unpaid leave (or another reasonable accommodation) absent undue hardship. Example #37/Unpaid Leave for Medical Appointments: 1. Known limitation and request for reasonable accommodation: Taylor's need to attend health care appointments is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Taylor needs an adjustment or change at work due to the limitation; Taylor has communicated this information to the employer. 2. Qualified: Taylor can perform the essential functions of the job with a reasonable accommodation of time off to attend the health care appointments. 3. The employer must grant the accommodation (or another reasonable accommodation) absent an undue hardship. Example #38/Unpaid Leave: 1. Known limitation and request for reasonable accommodation: Claudine's need to attend health care appointments is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Claudine needs an adjustment or change at work due to the limitation; Claudine has communicated that information to the employer. 2. Qualified: Claudine can perform the essential functions of the job with a reasonable accommodation of time off to attend health care appointments. 3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship. Example #39/Telework: 1. Known limitation and request for reasonable accommodation: Raim's fatigue is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Raim needs an adjustment or change at work due to the limitation; Raim has communicated that information to the employer. 2. Qualified: Assuming the appointments can be conducted virtually, Raim can perform the essential functions of the 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 can 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 #40/Temporary Workspace/Possible Temporary Suspension of Essential Function(s): 1. Known limitation and request for reasonable accommodation: Brooke's need to avoid the chemicals related to maintaining her health or the health of her pregnancy is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Brooke needs an adjustment or change at work due to the limitation; 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, a chemical fume hood, local exhaust ventilation, and/or personal protective equipment such as chemical-resistant gloves, a lab coat, and a powered air-purifying respirator. If providing these modifications would be an undue hardship or would not be effective, Brooke can 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 can perform the essential functions of the job in the near future (within generally 40 weeks). Her need to avoid exposure to hazardous chemicals also can be accommodated by allowing her to focus on the other research projects. 3. The employer must grant the accommodation (or another reasonable accommodation), absent undue hardship. If the employer cannot accommodate Brooke in a way that allows Brooke to continue to perform the essential function(s) of the position, the employer should consider providing alternative reasonable accommodations, including temporarily suspending one or more essential functions, absent undue hardship. Example #41/Temporary Transfer to Different Location: 1. Known limitation and request for reasonable accommodation: Katherine's need for treatment at a particular medical facility related to maintaining her health or the health of the pregnancy is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Katherine needs an adjustment or change at work due to the limitation; Katherine has communicated that information to the employer. 2. Qualified: Katherine is able to perform the essential functions of the job and work full-time with the reasonable accommodation of a temporary transfer to a different location. 3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship. A 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. Example #42/Pumping Breast Milk: 1. Known limitation and request for reasonable accommodation: Salma's need to express breast milk is a physical or mental condition related to, affected by, or arising out pregnancy, childbirth, or related medical conditions; Salma needs an adjustment or change at work due to the limitation; Salma has communicated this information to the employer. 2. Qualified: Salma is able to perform the essential functions of the jobs to which she is assigned with the reasonable accommodation of being assigned to workplaces where she can pump at work. 3. The agency must grant the accommodation (or another reasonable accommodation) absent undue hardship. Example #43/Commuting: 1. Known limitation and request for reasonable accommodation: Jayde's urinary incontinence, constipation, and hemorrhoids are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Jayde needs an adjustment or change at work due to the limitation; Jayde has communicated this information to the employer. 2. Qualified: Jayde can perform the essential functions of the job with the reasonable accommodation of a temporary assignment to a different location. 3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship. Example #44/Medications Affected by Pregnancy: 1. Known limitation and request for reasonable accommodation: Riya's difficulty concentrating due to her change in medication is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Riya needs an adjustment or change at work due to the limitation; Riya has provided this information to the employer. 2. Qualified: Riya can perform the essential functions of the job with the reasonable accommodation of more frequent breaks, a quiet place to work, and division of her tasks into smaller duties. 3. The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship. 1636.3(j) Undue Hardship 1636.3(j)(1) Undue Hardship—In General 83. The PWFA provides that “undue hardship” shall be construed under the PWFA as it is under the ADA and as set forth in this part. 108 109 110 108 109 see Enforcement Guidance on Reasonable Accommodation, supra 110 See 84. As under the ADA, if an employer asserts undue hardship based on cost, then there will be a determination made regarding whose financial resources should be considered. 111 112 111 See 112 See 85. As the Commission has stated under the ADA, “[u]ndue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.” 113 113 See Enforcement Guidance on Reasonable Accommodation, supra 86. Additionally, an employer cannot demonstrate undue hardship based on employees', clients', or customers' fears or prejudices toward the employee's pregnancy, childbirth, or related medical conditions, nor can an employer demonstrate undue hardship based on the possibility that the provision of an accommodation would negatively impact the morale of other employees. 114 114 See Enforcement Guidance on Reasonable Accommodation, supra cf. Groff DeJoy, 87. Consistent with the ADA, a covered entity asserting that a reasonable accommodation will cause an undue hardship must offer other reasonable accommodations that it can provide, absent undue hardship. 115 115 See Enforcement Guidance on Reasonable Accommodation, supra 1636.3(j)(2) Undue Hardship Factors 88. Section 1636.3(j)(2) sets out factors to be considered when determining whether a particular accommodation would impose an undue hardship on the covered entity using the factors from the ADA regulation. 116 116 See 89. Examples Regarding Undue Hardship: Example #45/Undue Hardship: Example #46/Undue Hardship: Example #47/Undue Hardship: 1636.3(j)(3) Undue Hardship—Temporary Suspension of an Essential Function(s) 90. In certain circumstances, the PWFA requires an employer to accommodate an employee's temporary inability to perform one or more essential functions. Therefore, § 1636.3(j)(3) provides additional factors that may be considered when determining whether the temporary suspension of one or more essential functions causes an undue hardship. These additional factors include: the length of time that the employee 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 function(s)) or otherwise, there is work for the employee to accomplish; 117 117 91. As with other reasonable accommodations, if the covered entity can establish that accommodating an employee'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 6 months. The employer can go without the function being accomplished for 4 months, but after that, it will create an undue hardship. The employer must accommodate the employee's inability to perform the essential function for 4 months and then consider whether there are other reasonable accommodations that it can provide, absent undue hardship, for the remaining time. 92. Section 1636.3(j)(3)(iv) is intended to account for situations where the covered entity has provided a similar accommodation to other employees. If the covered entity has temporarily suspended essential functions for other employees in similar positions before, it would tend to demonstrate that the accommodation is not an undue hardship. The reverse, however, is not true. A covered entity's failure to temporarily suspend an essential function(s) in the past does not tend to demonstrate that the accommodation creates an undue hardship because reasonable accommodation can include changing workplace procedures or rules. 1636.3(j)(4) Undue Hardship—Predictable Assessments 118 118 93. The Commission has identified 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 a qualified employee due to pregnancy. 94. These modifications are: (1) allowing an employee to carry or keep water near and drink, as needed; (2) allowing an employee to take additional restroom breaks, as needed; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (4) allowing an employee to take breaks to eat and drink, as needed. 119 120 119 120 95. The Commission emphasizes that the predictable assessments provision does not alter the meaning of the term “reasonable accommodation” or “undue hardship.” Employers should still conduct an individualized assessment when one of these accommodations is requested by a pregnant employee to determine if the requested accommodation causes an undue hardship, and employers may still bring forward facts to demonstrate that the proposed accommodation imposes an undue hardship for its business under its own particular circumstances. Instead, the provision informs covered entities that the individualized assessment of whether one of the straightforward and simple modifications listed in paragraphs (j)(4)(i) through (iv) is a reasonable accommodation that would cause undue hardship will, in virtually all cases, result in a determination that the four modifications are reasonable accommodations that will not impose an undue hardship under the PWFA when they are requested as workplace accommodations by an employee who is pregnant. 96. Examples Regarding Predictable Assessments: Example #48/Predictable Assessments: Example #49/Predictable Assessments: Example #50/Predictable Assessments: Undue Hardship—Consideration of Prior or Future Accommodations 97. An employer may consider the current impact of past and current cumulative costs or burdens of accommodations that have already been granted to other employees or the same employee, when considering whether a new request for the same or a similar accommodation imposes an undue hardship. For example, where an employer is already allowing two of the three employees who are able to open the store to arrive after opening time on certain days, it could pose an undue hardship to grant the accommodation of a delayed arrival time to the third employee on those same days. 98. The fact that an employer has provided the same or similar accommodations in the past may indicate that the accommodation can be provided without causing an undue hardship. Additionally, even if an employer previously failed to provide an employee a similar type of accommodation, if the employer intends to assert that providing the accommodation to another employee would pose an undue hardship, the employer should engage in the interactive process with the employee regarding the currently requested accommodation and determine whether the same conditions that previously imposed an undue hardship still exist. Ultimately, whether a particular accommodation will impose an undue hardship for an employer is determined on a case-by-case basis. 99. While an employer may consider the impact of prior accommodations granted to the employee currently seeking an accommodation, the mere fact that an employee previously received an accommodation or, indeed, several accommodations, does not establish that it would impose an undue hardship on the employer to grant a new accommodation. 100. Thus, for example, the fact that an employer already has provided an employee with an accommodation, such as the temporary suspension of an essential function due to their pregnancy, does not establish that providing this accommodation due to a post-pregnancy limitation would be an undue hardship. Instead, the employer would have to provide evidence showing that continuing the temporary suspension would impose an undue hardship. This showing could include, for example, evidence demonstrating why and how the cumulative impact of having already provided the accommodation during pregnancy makes the current impact of providing it post-pregnancy rise to the level of significant difficulty or expense. 101. A covered entity cannot demonstrate that a reasonable accommodation imposes an undue hardship based on the possibility—whether speculative or near certain—that it will have to provide the accommodation to other employees in the future. 121 121 See Enforcement Guidance on Reasonable Accommodation, supra 102. Finally, for the purposes of an employer asserting undue hardship based on the impact of prior or future accommodations, as with any assertion of an undue hardship, “[g]eneralized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.” 122 122 See id., Undue Hardship and Safety 103. An employer's contention that the accommodation an employee requests would cause a safety risk to co-workers or clients will be assessed under the PWFA's undue hardship standard. For example, consider a qualified pregnant employee in a busy fulfillment center that has narrow aisles between the shelves of products. The employee asks for the reasonable accommodation of a cart to use while they are walking through the aisles filling orders. The employer's assertion that the aisles are too narrow and its concern for the safety of other workers being bumped by the cart could be raised as a defense based on undue hardship, specifically § 1636.3(j)(2)(v), but the employer will have to demonstrate that the accommodation would actually pose an undue hardship. 104. If a particular reasonable accommodation causes an undue hardship because of safety, just as with any other situation where an employer cannot provide the requested accommodation, the employer must provide an alternative reasonable accommodation, if there is one available that does not impose an undue hardship. Importantly, assertions by employers that employees create a safety risk merely by being pregnant (as opposed to a safety risk that stems from an accommodation for a pregnancy-related limitation) should be addressed under Title VII's bona fide occupational qualification (BFOQ) standard and not under the PWFA. 123 123 See, e.g., UAW Johnson Controls, Everts Sushi Brokers LLC, Johnson Controls EEOC New Prime, Inc., Johnson Controls Enforcement Guidance on Pregnancy Discrimination, supra 1636.3(k) Interactive Process 105. The PWFA states that the interactive process will typically be used to determine an appropriate reasonable accommodation. 124 125 124 125 See 106. There are no rigid steps that must be followed when engaging in the interactive process under the PWFA, and information provided by the employee does not need to be in any specific format, include specific words, or be on a specific form. 107. In many instances, the appropriate reasonable accommodation may be obvious to either or both the employer and the employee with the known limitation so that the interactive process can be a brief discussion. The request and granting of the accommodation can occur in a single informal conversation or short email exchange. 126 126 108. Examples Regarding the Interactive Process: Example #51/Interactive Process: Example #52/Interactive Process: 109. In some instances, for example to determine an appropriate reasonable accommodation, the employer and employee may engage further in the interactive process. The process is not composed of rigid steps but is an opportunity for the covered entity and employee to participate in a dialogue to quickly identify a reasonable accommodation that enables the employee to address their limitation through a reasonable accommodation that does not pose an undue hardship. The interactive process also may provide an opportunity for the covered entity and the employee to discuss how different accommodations will provide the employee with equal employment opportunity and what accommodation the employee prefers. 127 127 See, e.g., Enforcement Guidance on Reasonable Accommodation, supra Technical Assistance on Applying Performance and Conduct Standards to Employees with Disabilities, https://www.eeoc.gov/laws/guidance/applying-performance-and-conduct-standards-employees-disabilities. See also supra 1636.3(h) Interim Reasonable Accommodations. 110. While the interactive process is an informal exchange of information, there are still certain rules that apply. The ADA restrictions on when employers are permitted to ask disability-related questions and require medical examinations apply to all such inquiries or examinations, whether employers make them of people with or without disabilities, including questions that an employer asks during the interactive process under the PWFA. 128 129 1636.7(a)(1) Prohibition on Disability-Related Inquiries and Medical Examinations and Protection of Medical Information. 128 See 129 Recommendations for an Interactive Process 111. Appropriate reasonable accommodations are best determined through a flexible interactive process that includes both the employer and the employee with the known limitation. Employers and employees may use some of the steps noted in paragraph 112 of this section, if warranted, to address requests for reasonable accommodations under the PWFA, but the Commission emphasizes that, as under the ADA, a covered entity and an employee do not have to complete all or even some of these steps. The Commission expects that typically a simple conversation will be sufficient for employers to obtain all the information needed to determine the appropriate reasonable accommodation. As with the ADA, a covered entity should respond expeditiously to a request for reasonable accommodation and act promptly to provide the reasonable accommodation. 130 130 See Enforcement Guidance on Reasonable Accommodation, supra 112. If an employer has not obtained enough information to determine the appropriate reasonable accommodation through the initial request or a simple conversation or email exchange, the flexible interactive process may continue. For example, when an employee with a known limitation has requested a reasonable accommodation regarding the performance of the essential functions of the job, the covered entity, using a problem-solving approach, may, as needed: 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 also must 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 and the employee could perform the essential function(s) in the near future; 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. 131 131 See 113. Steps (b) to (d) outlined in paragraph 112 of this section 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. 114. In some instances, neither the employee 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 an employee's known limitation and its effect on the performance of the job to suggest an appropriate accommodation. In these situations, the steps in paragraph 112 of this section may be helpful as part of the employer's reasonable effort to identify the appropriate reasonable accommodation. 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. 132 132 See supra See also Ergonomics-Solutions to Control Hazards, https://www.osha.gov/ergonomics/control-hazards Reproductive Health and The Workplace, https://www.cdc.gov/niosh/topics/repro/ Engaging in the Interactive Process 115. A covered entity's failure 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 after receiving a request for reasonable accommodation could result in liability if the employee does not receive a reasonable accommodation even though one is available that would not have posed an undue hardship. 133 134 133 See Enforcement Guidance on Reasonable Accommodation, supra 134 See id. 116. In situations where employers are permitted to seek supporting documentation, because employees may experience difficulty obtaining appointments with health care providers, especially early in pregnancy, the covered entity should be aware that it may take time for the employee to find a health care provider and provide documentation. Delay caused by the difficulty an employee faces in obtaining information from a health care provider in these circumstances should not be considered a withdrawal from or refusal to participate in the interactive process. If there is such a delay, an employer should consider providing an interim reasonable accommodation. 117. As set out in Example #53 of this appendix, if an employee requests an accommodation but then is unable to engage in the interactive process because of an emergency, an employer should not penalize the employee but rather should wait and restart the interactive process once the employee returns. Example #53/Interruption of Interactive Process: The bleeding and cramping Beryl experienced is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, and Beryl identified an adjustment or change needed at work (leave). Thus, Beryl made a request for a reasonable accommodation under the PWFA, and it serves to start the PWFA interactive process. The employer received Beryl's request, but the interactive process was interrupted by the emergency situation that required immediate action. The interactive process resumed when Beryl's partner spoke with the supervisor and provided further information regarding Beryl's condition. When Beryl spoke with her supervisor upon her return, she reengaged in the interactive process. Through this continued conversation, the employer was able to gather sufficient information to determine that Beryl had a limitation under the PWFA and was entitled to a reasonable accommodation. The employer must grant Beryl leave for the time she took off because of her miscarriage unless it can establish that doing so would be an undue hardship. Moreover, if the employer is one that automatically assigns points or penalizes employees for unexcused absences, Beryl should not be penalized for using the leave because she was entitled to the accommodation of leave. 135 135 See, e.g., King Steward Trumbull Mem'l Hosp., Inc., Some workplace attendance policies explicitly provide for unexpected absences by, for example, not penalizing workers who experience an emergency health situation. See Enforcement Guidance on Reasonable Accommodation, supra 1636.3(l) Limits on Supporting Documentation 118. A covered entity is not required to seek supporting documentation from an employee who requests an accommodation under the PWFA. If a covered entity decides to seek supporting documentation, the covered entity is permitted to do so only when reasonable under the circumstances to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an adjustment or change at work due to the limitation. When seeking documentation is reasonable, the employer is limited to seeking documentation that itself is reasonable. 119. The restrictions on a covered entity seeking supporting documentation are enforceable through different parts of the PWFA. As set out in § 1636.4(a)(3), as part of 42 U.S.C. 2000gg-1(1), a covered entity may not fail to provide a reasonable accommodation based on the employee's failure to provide supporting documentation if the covered entity's request for supporting documentation violates the standards set out in § 1636.3(l). Moreover, as discussed in section 1636.5(f) Possible Violations of 42 U.S.C. 2000gg-2(f) (§ 1636.5(f)) Based on Seeking Supporting Documentation During the Reasonable Accommodation Process and Disclosure of Medical Information, 120. In addition to the PWFA regulation, covered entities are reminded that the ADA's limitations on disability-related inquiries and medical exams apply to all ADA-covered employers. 136 137 i.e., 136 137 see infra 1636.7(a)(1) Prohibition on Disability-Related Inquiries and Medical Examinations and Protection of Medical Information. 121. The Commission notes that pregnant employees may experience limitations and, therefore, require accommodations, before they have had any pregnancy-related medical appointments. Pregnant employees also may experience difficulty obtaining an immediate appointment with a health care provider early in a pregnancy or finding a health care provider at all. The Commission encourages employers who choose to seek supporting documentation, when that is permitted under § 1636.3(l), to consider the best practice of granting interim reasonable accommodations if an employee indicates that they have tried to obtain documentation and it will be provided at a later date. 1636.3(l)(1) Seeking Supporting Documentation Only When Reasonable Under the Circumstances 122. The Commission expects that most PWFA interactive processes will consist of simple exchanges of information between employees and employers, such as brief conversations or emails, and that many of these will be concluded very shortly after the employee with a known limitation requests a reasonable accommodation, without any requests for further information. Once an employer has determined an appropriate reasonable accommodation, such as through these types of simple communications, no further interactive process is necessary. 123. The PWFA does not require employers to seek supporting documentation from employees requesting accommodations. Under the PWFA, a covered entity may seek supporting documentation only if it is reasonable under the circumstances for the covered entity to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an adjustment or change at work due to the limitation. 124. Under § 1636.3(l), situations when it would be reasonable under the circumstances for a covered entity to seek supporting documentation include, for example, if a pregnant employee asks for the temporary suspension of an essential function(s) that involves climbing ladders due to dizziness and the danger of falling, then the employer may, but is not required to, seek reasonable documentation, which is the minimum that is sufficient to confirm the physical or mental condition— i.e., i.e., 138 138 See supra 125. Section 1636.3(l) provides five examples of when it would not be reasonable under the circumstances for the employer to seek supporting documentation. 1636.3(l)(1)(i)—Obvious 126. Under the PWFA, it is not reasonable under the circumstances for an employer to seek supporting documentation when the physical or mental condition related to, affected by, or arising out of the pregnancy, childbirth, or related medical conditions (the limitation) and the adjustment or change at work that is needed due to the limitation are obvious. 127. In practice, the Commission expects this example will usually apply when the employee is obviously pregnant. 139 i.e., 139 i.e., Enforcement Guidance on Pregnancy Discrimination, supra 128. Thus, for example, when an obviously pregnant employee confirms they are pregnant and asks for a different size uniform or related safety gear, the limitation and the adjustment or change at work needed due to the limitation are obvious, and the employer may not seek supporting documentation. In situations where some information is obvious and other information is not, the employer may seek supporting documentation relevant only to the non-obvious issue. Thus, if an obviously pregnant employee requests the reasonable accommodation of leave related to childbirth and recovery and confirms that they are pregnant, it may be reasonable under the circumstances for the employer to seek supporting documentation about the length of leave for recovery, but it would not be reasonable to seek supporting documentation regarding the limitation. Of course, the employer does not have to seek supporting documentation and can simply engage the employee in a discussion about how much leave the employee will need and when they will need it. 1636.3(l)(1)(ii)—Known 129. The second example of when it would not be reasonable to seek supporting documentation is when the employer already has sufficient information to determine that the employee has a PWFA limitation and the adjustment or change at work needed due to the limitation. For example, if an employee already provided documentation stating that because of their recent cesarean section they should not lift over 20 pounds for 2 months, the employer may not seek further supporting documentation during those 2 months because the employer already has sufficient information. 140 140 130. This principle also applies to episodic conditions. If an employer already has sufficient information to determine that the employee has a PWFA limitation that is episodic (e.g., migraines that are related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions), and the adjustment or change at work needed periodically due to the limitation (breaks or time off), the employer cannot seek additional or new supporting documentation every time the condition arises. 1636.3(l)(1)(iii)—Predictable Assessments 131. The third example of when it is not reasonable under the circumstances for an employer to seek supporting documentation is based on the common types of pregnancy modifications sought under the PWFA. Specifically, it is not reasonable under the circumstances for an employer to seek supporting documentation when an employee, at any time during their pregnancy, seeks one of the following modifications, due to their pregnancy: (1) carrying or keeping water near for drinking, as needed; (2) taking additional restroom breaks, as needed; (3) sitting, for those whose work requires standing, and standing, for those whose work requires sitting, as needed; and (4) taking breaks to eat and drink, as needed. In these situations, an employee must provide self-confirmation as defined in § 1636.3(l)(4). Example #10 of this appendix shows how this can be part of the request for an accommodation. It is not reasonable to seek supporting documentation when an employee is pregnant, seeks one of the four listed modifications, and provides self-confirmation as defined in paragraph (l)(4) because these are a small set of commonly sought modifications that are widely known to be needed during an uncomplicated pregnancy. 1636.3(l)(1)(iv)—Lactation 132. The fourth example of when it is not reasonable under the circumstances to seek supporting documentation concerns lactation and pumping at work or nursing during work hours. Specifically, it is not reasonable under the circumstances to seek supporting documentation when the reasonable accommodation is related to a time and/or place to pump or any other modification related to pumping at work, 141 142 141 See supra 142 133. It is not reasonable to seek supporting documentation regarding pumping or nursing at work because lactation beginning around or shortly after birth is an obvious fact. Additionally, and pragmatically, health care providers may not be able to provide supporting documentation about the details of how a specific employee is managing nursing or pumping, as this is not something necessarily discussed with a health care provider. This example does not, however, apply to all reasonable accommodations related to lactation; thus, this example would not apply if a lactating employee requested full-time remote work due to a condition that makes pumping difficult. 1636.3(l)(1)(v)—Employer's Own Policies or Practices 134. The fifth example of when it would not be reasonable under the circumstances for a covered entity to seek supporting documentation relates to an employer's own policies or practices. If the requested accommodation is one that is available to employees without known limitations pursuant to the covered entity's policies or practices without submitting supporting documentation, then it is not reasonable for the employer to seek supporting documentation from an employee seeking a similar accommodation under the PWFA. For example, if an employer has a policy or practice of requiring supporting documentation only for the use of leave for 3 or more consecutive days, it would not be reasonable to ask someone who is using the same type of leave due to a known limitation under the PWFA to submit supporting documentation when they request leave for 2 or fewer days. 143 143 1636.3(l)(2) Reasonable Documentation 135. Under the PWFA, reasonable accommodations are available for physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. When it is reasonable under the circumstances for the covered entity to seek supporting documentation, the covered entity is limited to seeking documentation that is itself reasonable. When it is reasonable under the circumstances for the covered entity to seek supporting documentation, the covered entity may require that the supporting documentation come from a health care provider. 136. Confirming the physical or mental condition requires only a simple statement that the physical or mental condition meets the first part of the definition of “limitation” at § 1636.3(a)(2), ( i.e., 144 145 144 145 see 137. The supporting documentation should confirm that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The supporting documentation need not state that the pregnancy, childbirth, or related medical conditions are the sole, the original, or a substantial cause of the physical or mental condition at issue because the statute only requires that the physical or mental condition be “related to, affected by, or arising out of” pregnancy, childbirth, or related medical conditions. 146 146 see supra 1636.3(a)(2) Related to, Affected by, or Arising Out of. 138. The employer also may seek reasonable documentation to describe the adjustment or change at work that is needed due to the limitation and an estimate of the expected duration of the need for the adjustment or change. This may be, for example: no heavy lifting for approximately 4 months; cannot stand for more than 30 minutes at a time until the end of the pregnancy; the maximum amount of weight involved in the lifting restriction and the approximate length of the restriction; the approximate number of and length of breaks; the kind of support or equipment needed and for approximately how long; a change in the type of protective equipment or ventilation needed and for approximately how long it will be needed; the need to limit movement and be allowed to lie down when necessary and for approximately how long the employee will need to limit movement; a change in work location and the approximate length of time of the change; a period of leave expected to be needed for recovery or to attend health care appointments; or the essential function(s) that should be temporarily suspended and for how long. 139. Where the supporting documentation meets the standards described in this section, it is sufficient to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an adjustment or change at work due to the limitation. Accordingly, a covered entity that has received sufficient documentation but fails to provide an accommodation based on the failure to provide sufficient documentation, or continues to seek additional documentation or information, risks liability under 42 U.S.C. 2000gg-1(1) (§ 1636.4(a)(3)) and/or 42 U.S.C. 2000gg-2(f) (§ 1636.5(f)). 140. Examples Regarding Documentation: 147 147 Example #54/Reasonable Documentation: Example #55 Reasonable Documentation: 141. Because a covered entity is limited to the minimum supporting documentation necessary, a covered entity may not require that a pregnancy be confirmed through a specific test or method. Moreover, such a requirement could implicate the ADA's provisions that medical examinations only are permitted when they are job-related and consistent with business necessity. 148 148 142. Additionally, covered entities may not require that supporting documentation be submitted on a specific form, but only that documentation meets the requirements of § 1636.3(l)(2). If covered entities offer an optional form for employees to use in submitting supporting documentation, the covered entities may wish to review preexisting forms they have for reasonable accommodations or leave to ensure their compliance with the PWFA. For example, the PWFA does not require that an employee have a “serious health condition” and the statute does not use the term “major life activity,” so employer forms or other employer communications seeking supporting documentation for PWFA-related reasonable accommodations should not use this terminology. 1636.3(l)(3) Limitations on a Covered Entity Seeking Supporting Documentation From a Health Care Provider 143. When it is reasonable under the circumstances for the covered entity to seek supporting documentation, a covered entity may require that the supporting documentation comes from a health care provider. The regulation contains a non-exhaustive list of possible health care providers that is based on the non-exhaustive list provided in the Commission's ADA policy guidance. 149 149 See Enforcement Guidance on Reasonable Accommodation, supra 144. The covered entity may not require that the health care provider who is submitting documentation be the provider treating the employee for the condition at issue, as long as the health care provider is able to confirm the physical or mental condition; confirm that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together “a limitation”); and describe the adjustment or change at work that is needed due to the limitation. The covered entity may not require that an employee be examined by a health care provider of the covered entity's choosing. 1636.3(l)(4) Self-Confirmation of Pregnancy or Lactation 145. For the purposes of supporting documentation under the PWFA, self-confirmation is a simple statement in which the employee confirms, as set forth in § 1636.3(l)(1)(i), (iii) and (iv), the limitation and adjustment or change that is needed at work due to the limitation. The self-confirmation statement can be made in any manner and can be made as part of the request for reasonable accommodation under § 1636.3(h)(2). For example, self-confirmation may be spoken, it may be recorded or live, or it may be written on paper or electronically, such as in an email or text. Self-confirmation does not need to use any particular words or format, does not need to be written on a form, does not need to be a particular length, does not need to be notarized or otherwise verified, and does not need to be accompanied by documentary or physical evidence. In many instances, the self-confirmation will be part of what the employee communicates when they start the reasonable accommodation process. Example #10 of this appendix, where an employee tells a manager of her need for more frequent bathroom breaks and explains that the breaks are needed because the employee is pregnant, is an example of self-confirmation of pregnancy. Interaction Between the PWFA and the ADA 146. Employers covered by the PWFA also are covered by the ADA. 150 151 150 151 147. The ADA provides for the confidentiality of medical information, subject to limited disclosure rules. 152 153 1636.7(a)(1) Prohibition on Disability-Related Inquiries and Medical Examinations and Protection of Medical Information. 152 Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, Enforcement Guidance on Disability-Related Inquiries http://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, Enforcement Guidance: Preemployment Disability-Related Questions https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical. https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical 153 See Enforcement Guidance on Disability-Related Inquiries, supra 148. If there is a situation where an employee requests an accommodation and both the PWFA and the ADA could apply, the employer should apply the provision that it would be less demanding for the employee to satisfy. For example, assume a pregnant employee has diabetes that is exacerbated by the pregnancy and needs breaks to eat or drink. Under the PWFA, the covered entity cannot seek supporting documentation (as set forth in § 1636.3(l)(1)(iii)) and this is the provision that the employer should apply. IV. 1636.4 Nondiscrimination With Regard to Reasonable Accommodations Related to Pregnancy 1636.4(a) Failing To Provide Reasonable Accommodation 1. The statute at 42 U.S.C. 2000gg-1(1) prohibits a covered entity from not making a reasonable accommodation for a qualified employee with a known limitation related to pregnancy, childbirth, or related medical conditions 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. 154 154 See 2. This section is violated when a covered entity fails to make reasonable accommodation to a qualified employee with a known limitation, absent undue hardship. 155 155 1636.4(a)(1) Unnecessary Delay in Providing a Reasonable Accommodation 3. An unnecessary delay in providing a reasonable accommodation to the known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee may result in a violation of the PWFA if the delay constitutes a failure to provide a reasonable accommodation. This can be true even if the reasonable accommodation is eventually provided, when the delay was unnecessary. Unnecessary delay that can be actionable under this section can occur at any time during the accommodation process including, but not limited to, responding to the initial request, during the interactive process, or in implementing the accommodation once the request is approved. Delay by a third-party administrator acting on behalf of the covered entity is attributable to the covered entity. 4. Section 1636.4(a)(1) sets out the factors that are used when determining whether a delay in the provision of a reasonable accommodation violates the PWFA. Section 1636.4(a)(1) sets out the factors already identified in the ADA guidance 156 156 See Enforcement Guidance on Reasonable Accommodation, supra Enforcement Guidance 5. First, whether providing the accommodation was simple or complex is a factor to be considered. Under the PWFA, there are certain modifications, set forth in § 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 or keep water near and drink, as needed; (2) allowing a pregnant employee to take additional restroom breaks, as needed; (3) allowing a pregnant employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (4) allowing a pregnant employee to take breaks to eat and drink, as needed. If there is delay in providing these accommodations to a qualified employee with a known limitation, 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. 6. Second, whether the covered entity offered the employee an interim reasonable accommodation during the interactive process is a factor to be considered. The offer of an interim reasonable accommodation can be made at any time following the request for accommodation. The provision of an interim accommodation will decrease the likelihood that an unnecessary delay will be found. Under this factor, the interim reasonable accommodation should be one that enables the employee to keep working as much as possible; the provision of leave will not be considered as a factor that can excuse delay, unless the employee selects, or requests, leave as an interim reasonable accommodation. 157 157 7. Third, the length of time for which the employee will need the reasonable accommodation is another factor to be considered. Given that limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions are frequently temporary, an unnecessary delay in providing an accommodation may mean that the period necessitating the accommodation could pass without action simply because of the delay. 1636.4(a)(2) Refusing an Accommodation 8. An employee with a known limitation is not required to accept a reasonable accommodation. However, if the rejection of the reasonable accommodation results in the employee being unable to perform the essential functions of the job, the employee is not qualified. This provision mirrors the language from a similar provision in the ADA regulation, 158 158 See 1636.4(a)(3) Covered Entity Failing To Provide a Reasonable Accommodation Due to Lack of Supporting Documentation 9. A covered entity cannot defend the failure to provide an accommodation based on the lack of supporting documentation if: the covered entity did not seek supporting documentation; seeking supporting documentation was not reasonable under the circumstances as defined in § 1636.3(l)(1); the covered entity sought documentation beyond that which is reasonable as defined in § 1636.3(l)(2); or the covered entity did not provide the employee sufficient time to obtain and provide the supporting documentation sought. 1636.4(a)(4) Choosing Among Possible Accommodations 10. The covered entity must provide an effective accommodation, i.e., 159 160 161 159 See 160 Id. 161 Id. 11. A covered entity's “ultimate discretion” in choosing a reasonable accommodation is limited by certain other considerations. First, 42 U.S.C. 2000gg-1 (§ 1636.4(a)(4)) requires that the accommodation must provide the qualified employee with a known limitation with equal employment opportunity. 162 163 164 162 See also Enforcement Guidance on Reasonable Accommodation, supra 163 See see also Enforcement Guidance on Reasonable Accommodation, supra cf. Compliance Manual on Religious Discrimination, Compliance Manual on Religious Discrimination https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination Enforcement Guidance: Unlawful Disparate Treatment of Workers With Caregiving Responsibilities, https://www.eeoc.gov/laws/guidance/enforcement-guidance-unlawful-disparate-treatment-workers-caregiving-responsibilities 164 12. Second, 42 U.S.C. 2000gg-1(2) prohibits a covered entity from requiring a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process. 13. Third, 42 U.S.C. 2000gg-1(4) prohibits a covered entity from requiring a qualified employee with a known limitation to take leave, whether paid or unpaid, if there is a reasonable accommodation that will allow the employee to continue to work, absent undue hardship. 14. Fourth, 42 U.S.C. 2000gg-1(5) prohibits a covered entity from taking 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 the pregnancy, childbirth, or related medical conditions of the employee. 15. Fifth, 42 U.S.C. 2000gg-2(f) prohibits retaliation and coercion by covered entities. 16. These limitations to the “ultimate discretion” of a covered entity to choose among effective accommodations are described in the discussions of §§ 1636.4(b), (d), and (e) and 1636.5(f). 17. Example Regarding Failing To Provide Equal Employment Opportunity: Example #56/Failing To Provide Equal Employment Opportunity: 1636.4(b) Requiring a Qualified Employee To Accept an Accommodation 18. The statute at 42 U.S.C. 2000gg-1(2) prohibits a covered entity from requiring a qualified employee to accept an accommodation other than any reasonable accommodation arrived at through the interactive process. Pursuant to this provision in the PWFA and § 1636.4(b), a covered entity cannot require a qualified employee 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 employee's health or pregnancy. 19. The statute at 42 U.S.C. 2000gg-1(2) does not require that the employee have a limitation, known or not; thus, a violation of 42 U.S.C. 2000gg-1(2) could occur if a covered entity believes that a qualified employee is pregnant and decides, without engaging in the interactive process with the employee, that the employee needs a particular accommodation, and unilaterally requires the employee to accept the accommodation, even though the employee 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, decides that a candidate recovering from a miscarriage needs an accommodation in the form of not being sent to certain jobs that the agency views as too physical. Similarly, a violation could result if an employer decides to excuse a qualified pregnant employee from overtime as an accommodation without the employee seeking an accommodation and the employer and the employee engaging in the interactive process. 165 165 See Enforcement Guidance on Pregnancy Discrimination, supra 20. 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 by the qualified employee without engaging in the interactive process. 21. Example Regarding Requiring an Employee To Accept an Accommodation: Example #57/Requiring an Employee To Accept an Accommodation: Moreover, 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); 2000gg-1(5) (prohibiting adverse action in terms, conditions, or privileges of employment); and/or 2000gg-2(f) (prohibiting retaliation) (§§ 1636.4(a) and (e) and 1636.5(f)). 22. Finally, this provision also could be violated if a covered entity has a rule that requires all qualified pregnant employees to stop a certain function—such as traveling—automatically, without any evidence that the particular employee is unable to perform that function. 1636.4(c) Denying Opportunities to Qualified Employees 23. The statute at 42 U.S.C. 2000gg-1(3) prohibits a covered entity from denying employment opportunities to a qualified employee with a known limitation if the denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions of the qualified employee. Thus, an employee'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. 24. This provision in the PWFA uses language similar to that of the ADA, and § 1636.4(c) likewise uses language similar to the corresponding ADA regulation. 166 i.e., 166 See 1636.4(d) Requiring a Qualified Employee To Take Leave 25. A covered entity may not require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the employee's known limitations related to pregnancy, childbirth, or related medical conditions absent undue hardship. 26. This provision does not prohibit a covered entity from offering leave as a reasonable accommodation if leave is the reasonable accommodation requested or selected by the qualified employee, or if it is the only reasonable accommodation that does not cause an undue hardship. As provided in § 1636.3(i)(3), both paid leave (accrued, short-term disability, or another employer benefit) and unpaid leave are potential reasonable accommodations under the PWFA. 1636.4(e) Adverse Action on Account of Requesting or Using a Reasonable Accommodation 27. The PWFA contains overlapping provisions that protect employees, applicants, and former employees seeking or using reasonable accommodations. Importantly, nothing in the PWFA limits which provision an employee may use to protect their rights. 28. One of these provisions is 42 U.S.C. 2000gg-1(5), which prohibits adverse action in the 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 the pregnancy, childbirth, or related medical conditions of the employee. 29. 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. However, the PWFA's anti-retaliation provisions apply to a broader group of individuals and actions than 42 U.S.C. 2000gg-1(5) does. 30. “Terms, conditions, or privileges of employment” is a term from Title VII, and the Commission 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). 167 167 Compliance Manual on Terms, Conditions, and Privileges of Employment, supra 31. This provision prohibits a covered entity from taking a harmful action against a qualified employee. For example, this provision prohibits a covered entity from penalizing an employee for having requested or used an accommodation that the covered entity had granted previously. 32. Examples Regarding Adverse Action in Terms, Conditions, or Privileges of Employment: Example #58/Adverse Action in Terms, Conditions, or Privileges of Employment: 168 168 See Enforcement Guidance on Reasonable Accommodation, supra 33. Also, an employer may violate this provision if there is more than one reasonable 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 #59/Adverse Action in Terms, Conditions, or Privileges of Employment: Example #60/Adverse Action in Terms, Conditions, or Privileges of Employment: 34. The facts set out in Examples #58 and #59 of this appendix also could violate 42 U.S.C. 2000gg-1(1) and 2000gg-2(f). V. 1636.5 Remedies and Enforcement 1. In crafting the PWFA remedies and enforcement section, Congress recognized the advisability of using the existing mechanisms for redress of other forms of employment discrimination. The regulation at § 1636.5(a), (c), (d), and (e) follows the language of the statute. 1636.5(a) Remedies and Enforcement Under Title VII 2. The enforcement mechanisms, procedures, and remedies available to employees and others covered by Title VII apply to the PWFA. 169 170 171 169 170 See 171 See EEOC Dolgencorp, LLC, 1636.5(e) Remedies and Enforcement Under Section 717 of the Civil Rights Act of 1964 3. 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. Employees covered by section 717 of Title VII may file complaints with the relevant Federal agency which will investigate them, and the Commission will process appeals using the same process as set out in Title VII for Federal employees. Thus, the Commission's implementing regulations found at 29 CFR part 1614 (Federal sector equal employment opportunity) apply to the PWFA as well. Damages 4. 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 adoption 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 and punitive damages generally applicable in employment discrimination cases, depending on the size of the employer. Punitive damages are not available in actions against a government, government agency, or political subdivision. This part lays out these requirements involving damages in separate paragraphs under § 1636.5(a) through (e). 1636.5(f) Prohibition Against Retaliation 5. The anti-retaliation provisions of the PWFA should be interpreted broadly, like those of Title VII and the ADA, to effectuate Congress' broad remedial purpose in enacting these laws. 172 173 172 See Enforcement Guidance on Retaliation and Related Issues, supra id. 173 See Enforcement Guidance on Non-Waivable Employee Rights under EEOC Enforced Statutes, https://www.eeoc.gov/laws/guidance/enforcement-guidance-non-waivable-employee-rights-under-eeoc-enforced-statutes 1636.5(f)(1) Prohibition Against Retaliation 6. The types of conduct prohibited, the standard for determining what constitutes retaliatory conduct, and the individuals protected under the PWFA are the same as they are under Title VII. 174 175 176 177 178 174 See 175 See Enforcement Guidance on Retaliation, supra see also id. 176 Burlington N. & Santa Fe Ry. Co. White, 177 See See also Robinson Shell Oil Co., 178 See Enforcement Guidance on Retaliation, supra 7. Section 1636.5(f) contains three other provisions based on the statutory language and established anti-retaliation concepts under Title VII and the ADA. 8. First, 42 U.S.C. 2000gg-2(f)(1) protects “any employee,” not only “a qualified employee with a known limitation”; therefore, an employee, applicant, or former employee need not establish that they have a known limitation or are qualified (as those terms are defined in the PWFA) to bring a claim under 42 U.S.C. 2000gg-2(f)(1). 179 179 See Enforcement Guidance on Retaliation, supra 9. Second, a request for a reasonable accommodation under the PWFA constitutes protected activity, and therefore retaliation for such a request is prohibited. 180 180 See id. 10. Third, an employee, applicant, or former employee does not have to be actually deterred from exercising or enjoying rights under this section for the retaliation to be actionable. 181 181 See id. 1636.5(f)(2) Prohibition Against Coercion 11. 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. 182 183 184 182 183 See Enforcement Guidance on Retaliation, supra 184 See id. 12. The purpose of this provision is to ensure that employees are free to avail themselves of the protections of the statute. Thus, consistent with the ADA regulation for the analogous provision, § 1636.5(f)(2) includes “harass” in the list of prohibitions; the inclusion is intended to characterize the type of adverse treatment that may in some circumstances violate the coercion provision. 185 186 185 See see also Enforcement Guidance on Retaliation, supra 186 See Enforcement Guidance on Retaliation, supra 13. Importantly the coercion provision does not apply to any and all conduct or statements that an individual finds intimidating; it only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of PWFA rights. 187 187 See id Some 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 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. 188 188 See id. Possible Violations of 42 U.S.C. 2000gg-2(f) (§ 1636.5(f)) Based on Seeking Supporting Documentation During the Reasonable Accommodation Process and Disclosure of Medical Information 14. Seeking documentation or information that goes beyond the parameters laid out in § 1636.3(l) when an employee requests a reasonable accommodation under the PWFA may violate 42 U.S.C. 2000gg-2(f) (§ 1636.5(f)) because seeking such information or documentation might well dissuade a reasonable person from engaging in protected activity, such as requesting a reasonable accommodation, or might constitute coercion. Circumstances under which going beyond the parameters of § 1636.3(l) may violate 42 U.S.C. 2000gg-2(f) (§ 1636.5(f)) include: • Seeking supporting documentation or information in response to an employee's request for reasonable accommodation when it is not reasonable under the circumstances for the covered entity to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an adjustment or change at work due to the limitation, whether or not the employee provides the documentation or information and whether or not the employer grants the accommodation. • Continued efforts to obtain more information or supporting documentation when sufficient information or supporting documentation has already been provided to allow the employer to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and the adjustment or change at work that is needed due to the limitation, whether or not the employee provides the documentation or information and whether or not the employer grants the accommodation. 189 189 See Enforcement Guidance on Disability-Related Inquiries, supra 15. Disclosing medical information, threatening to disclose medical information, or requiring an employee to share their medical information other than in the limited situations set out in section 1636.7(a)(1) Prohibition on Disability-Related Inquiries and Medical Examinations and Protection of Medical Information 190 190 infra 1636.7(a)(1) Prohibition on Disability-Related Inquiries and Medical Examinations and Protection of Medical Information, See Enforcement Guidance on Disability-Related Inquiries, supra Enforcement Guidance: Preemployment Disability-Related Questions, supra 16. Actions that the courts or the Commission have previously determined may be retaliation or interference under Title VII or the ADA may violate the retaliation and coercion provisions of the PWFA as well. Depending on the facts, a covered entity's retaliation for activity protected under the PWFA also may violate 42 U.S.C. 2000gg-1(1) (because these actions may make the accommodation ineffective) or 2000gg-1(5) (prohibiting adverse actions) (§ 1636.4(a) and (e)). 17. The following examples could violate 42 U.S.C. 2000gg-2(f) and also may violate 42 U.S.C. 2000gg-1(1), (5) or other laws. Example #61/Retaliatory Performance Appraisal: Example #62/Retaliatory Surveillance: Example #63/Seeking Supporting Documentation Beyond § 1636.3(l): Example #64/Dissuaded from Requesting an Accommodation: Example #65/Threatening Future Employment: Example #66/Disciplined for Assisting Other Employees: Example #67/Negative Reference: Example #68/Seeking Supporting Documentation Beyond § 1636.3(l): Example #69/Disciplined Through Workplace Policy: Example #70/Retaliatory Failure to Provide Interim Reasonable Accommodation: Example #71/Retaliation for Requesting Safety Information: Example #72/Seeking Supporting Documentation Beyond § 1636.3(l): Example #73/Seeking Supporting Documentation Beyond § 1636.3(l) and Failure to Provide Accommodation: Example #74/Retaliatory Waiver of Rights: Example #75/Disclosure of Medical Information: Example #76/Retaliatory Harassment: 1636.5(g) Limitation on Monetary Damages 18. The PWFA at 42 U.S.C. 2000gg-2(g), using the language of the Civil Rights Act of 1991, 42 U.S.C. 1981a(a)(3), provides a limitation on damages based on a “good faith effort” to provide a reasonable accommodation. The covered entity bears the burden of proof for this affirmative defense. This limitation on damages applies to violations of 42 U.S.C. 2000gg-1(1) (§ 1636.4(a)) only. It does not apply to any other provisions of the PWFA. VI. 1636.7 Relationship to Other Laws 1636.7(a)(1) Relationship to Other Laws in General 1. 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 a Federal, State, or local law that provides less protection for individuals affected by pregnancy, childbirth, or related medical conditions than the PWFA does not limit the rights provided by the PWFA. 2. Federal laws, including, but not limited to, Title VII, the ADA, the FMLA, the Rehabilitation Act, the PUMP Act, and Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., 191 192 191 Employment Protections for Workers Who Are Pregnant or Nursing, www.dol.gov/agencies/wb/pregnant-nursing-employment-protections 192 3. Section 1636.7(a) also applies to Federal or State occupational health and safety laws and collective bargaining agreements (CBAs). Thus, nothing in the PWFA limits an employee's rights under laws such as the OSH Act or under a CBA if either of those provide protection greater than or equal to that of the PWFA. The PWFA and Title VII 4. The PWFA uses many terms and definitions from Title VII, and conduct that is the subject of PWFA claims also may give rise to claims under Title VII. For example, a qualified pregnant employee who sought leave for recovery from childbirth and was terminated may have a claim under both Title VII for sex discrimination and the PWFA for failure to accommodate, adverse employment action, or retaliation. 193 193 See 5. 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. 194 Young UPS 195 194 195 6. Finally, nothing in the PWFA, this part, or this Interpretive Guidance should be interpreted to reduce or limit any protections provided by Title VII. The PWFA and the ADA 7. The PWFA uses many terms and definitions from the ADA. Conduct that is the subject of PWFA claims also may give rise to claims under the ADA. For example, an employee with postpartum depression seeking a reasonable accommodation to attend treatment whose employer fails to provide the accommodation may have a claim under both the PWFA and the ADA (and possibly also Title VII). Similarly, an employee who has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions may have both a known limitation under the PWFA and a disability under the ADA (where the physical or mental condition substantially limits a major life activity, including a major bodily function—in other words, the individual would have an “actual” ADA disability). 196 196 8. While it will depend on the specific facts, if an employee could be covered under either the PWFA or the ADA, a covered entity's analysis, in most cases, should begin with the PWFA because the definition of “known limitation” under the PWFA covers situations when the ADA does not apply. 197 197 9. Requests for accommodation under the PWFA may be indistinguishable from requests for accommodation under the ADA and there will be situations in which both statutes apply. In one instance, the PWFA known limitation also may be an ADA disability. In another, employees with existing disabilities may seek ADA coverage for those, while also invoking the PWFA to address limitations related to pregnancy, childbirth, or related medical conditions interacting with an existing disability. In these situations, employees with disabilities may require additional or different accommodations and are entitled to them, absent undue hardship, under the PWFA and/or the ADA. 10. There also will be situations where an employee with a disability who has an accommodation under the ADA seeks and is granted an accommodation under the PWFA. For example, an employee who uses an adaptive keyboard as an ADA reasonable accommodation temporarily may be assigned to a new position as part of an accommodation under the PWFA because an essential function of their original position has been temporarily suspended. In this situation, the employer must continue to provide the adaptive keyboard as an ADA reasonable accommodation if it is necessary for the employee to perform the essential functions of the new position. 11. Because an individual may be covered by both the ADA and the PWFA, and the PWFA provides at 42 U.S.C. 2000gg-5(a)(1) that nothing in the statute shall be construed to invalidate or limit the powers, remedies, and procedures under any Federal law that provides greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions, a covered entity must apply the law that provides the worker the most protection. 12. Examples Regarding Disability and Pregnancy: Example #77/Disability and Pregnancy: Example #78/Disability and Pregnancy: 13. In cases where both the ADA and PWFA apply, if an employer fails to provide an accommodation the employee could potentially file a claim for failure to accommodate under both the ADA and the PWFA. They also could file a separate ADA claim if they experienced disparate treatment based on a disability. Prohibition on Disability-Related Inquiries and Medical Examinations and Protection of Medical Information 14. Important protections from the ADA that apply to all covered employees continue to apply when employees are seeking accommodations under the PWFA. First, the rules limiting the ability of covered entities to make disability-related inquiries or require medical exams in the ADA apply to all disability-related inquiries and medical exams including those made in the context of requests for PWFA accommodation. 198 198 See 15. Second, under the ADA, covered entities are required to keep medical information of all applicants, employees, and former employees (whether or not those individuals have disabilities) confidential, with limited exceptions. 199 200 201 202 199 Enforcement Guidance on Disability-Related Inquiries, supra Enforcement Guidance: Preemployment Disability-Related Questions, supra 200 See supra See, e.g., Visual Disabilities in the Workplace and the Americans with Disabilities Act, https://www.eeoc.gov/laws/guidance/visual-disabilities-workplace-and-americans-disabilities-act#q8 201 202 see Enforcement Guidance: Preemployment Disability-Related Questions, supra 16. That an employee is pregnant, has recently been pregnant, or has a medical condition related to pregnancy or childbirth is medical information. The ADA requires that employers keep such information confidential and only disclose it within the confines of the limited disclosure rules described in paragraphs 17 and 18 of this section. Similarly, disclosing that an employee 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, usually amounts to a disclosure that the employee is pregnant, has recently been pregnant, or has a related medical condition. 17. As set forth at 29 CFR 1630.14, under the ADA, medical information must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that: (i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (iii) Government officials investigating compliance with the ADA shall be provided relevant information on request. 18. In addition to what is stated in the ADA regulation: covered entities (iv) may disclose the medical information to State workers' compensation offices, State second injury funds, or workers' compensation insurance carriers in accordance with State workers' compensation laws; and (v) may use the medical information for insurance purposes. 203 203 See Enforcement Guidance: Preemployment Disability-Related Questions, supra 19. In addition, as explained in section 1636.5(f) Possible Violations of 42 U.S.C. 2000gg-2(f) (§ 1636.5(f)) Based on Seeking Supporting Documentation During the Reasonable Accommodation Process and Disclosure of Medical Information, 204 204 See, e.g., Haire Farm & Fleet of Rice Lake, Inc., Holtrey Collier Cnty. Bd. of Cnty. Comm'rs, 20. Finally, nothing in the PWFA, this part, or this Interpretive Guidance should be interpreted to reduce or limit any protections provided by the ADA. 1636.7(a)(2) Limitations Related to Employer-Sponsored Health Plans 21. The statute at 42 U.S.C. 2000gg-5(a)(2) states that nothing in the PWFA shall be construed to require an employer-sponsored health plan to pay for or cover any item, procedure, or treatment and, further, that nothing in the PWFA shall be construed to 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 22. The statute at 42 U.S.C. 2000gg-5(b) provides a “rule of construction” stating that the PWFA 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. 205 206 205 206 See Compliance Manual on Religious Discrimination, supra VII. 1636.8 Severability 1. The PWFA at 42 U.S.C. 2000gg-6 contains a severability provision regarding the statute. Section 1636.8 repeats the statutory provision and also addresses the Commission's intent regarding the severability of the Commission's regulations in this part and this Interpretive Guidance. 2. Following Congress' rule for the statute, in places where this part 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 this part and the application of that provision of this part to other persons or circumstances shall not be affected. 3. In other places, where this part or this Interpretive Guidance provide additional guidance to carry out the PWFA, including examples of reasonable accommodations, following Congress' 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 Interpretive Guidance or the application of those provisions or the Interpretive Guidance to particular persons or circumstances is held invalid or found to be unconstitutional, the remainder of this part or the Interpretive Guidance and the application of that provision of this part or the Interpretive Guidance to other persons or circumstances shall not be affected.

Related documents

• 50 CFR Part 600 — Magnuson-Stevens Act Provisions#512148
• 50 CFR Part 622 — Fisheries of the Caribbean, Gulf of America, and South Atlantic#512149
• 50 CFR Part 635 — Atlantic Highly Migratory Species#512150
• 50 CFR Part 648 — Fisheries of the Northeastern United States#512151
• 50 CFR Part 660 — Fisheries off West Coast States#512152