Federal Law Alert: Federal Pregnant Workers Fairness Act Takes Effect: HR Law

Federal Law Alert: Federal Pregnant Workers Fairness Act Takes Effect: HR Law. Some long-overdue rules are going to be born into federal employment law. According to the federal Pregnant Workers Fairness Act (PWFA), firms with 15 or more employees are required to make pregnancy-related accommodations for both current workers and potential hires as of June 27, 2023. In the following, we’ll refer to both current employees and potential hires as “employees.”

We gave you an overview of the new “Pregnant Workers Fairness Act,” which Congress passed in December 2022 and was incorporated into the Appropriations bill, in January. The Equal Employment Opportunity Commission (EEOC) has announced that it will start receiving violation reports on June 27, the day this law officially goes into effect.

Additionally, the new law mandates that the EEOC publish federal regulations (by December 2023) outlining how it will apply and interpret its provisions as well as providing examples of the kinds of accommodations that the Commission would deem “reasonable.”

Even while it has been said that the Commission is already working on them, we aren’t really sure if we will ever get to see a draft of its plans before the law takes effect in June. Therefore, it could be wise to foresee what the Commission will expect and to start getting ready for these requests to come in. Here is what we can share with you right now.

Pregnancy Related Accommodations

Employees are eligible to accommodations under the PWFA if their condition is connected to, affected by, or related to pregnancy, childbirth, or a related medical condition. The condition could be either mental or physical. Morning sickness, gestational diabetes, post-partum depression, and lactation are just a few of the illnesses connected to pregnancy.

By removing the requirement that an employee’s condition must be severe enough to qualify as a disability under the Americans with Disabilities Act (ADA), this statute broadens employer obligations beyond those are already mandated by the ADA.

Additionally, even if they are temporarily unable to execute their essential job duties, employees are still entitled to accommodations.

Possible modifications could be, but are not restricted to:

1. Modifying a food or drink policy
2. Providing job restructuring, light duty, or a modified work schedule
3. Providing more frequent or longer breaks
4. If a reasonable accommodation can be made on the job, an employer cannot demand that an employee take a leave of absence. Employer and employee should collaborate in order to establish what reasonable accommodations can be made, just as the ADA. The interactive procedure is not necessary, though, if the company is prepared to comply with the employee’s request.
5. Providing seating or allowing the employee to sit more frequently if their job requires standing
6. Observing limits on lifting

You should be aware that many states already have pregnancy accommodation legislation in place, some of which might be more lenient than the PWFA. Employers must follow the law—or the portion of each law—that benefits employees the most.

Undue Hardship Exception

If making a reasonable accommodation will make it difficult for the employer to run their business, they are not required to do so. Similar to the ADA, the definition of an undue hardship is “an action requiring significant difficulty or expense.” This is a high bar that employers must clear.

Action Items

1. If you don’t already have one, add a pregnant accommodations policy to your handbook.
2. If you’re subject to a state legislation that mandates comparable concessions, make sure your policy incorporates the provisions that are most beneficial to employees.
3. Make sure management are knowledgeable about the law and the different accommodations that might be necessary.

What was the motivation for this new law?

Employers are worried mostly because current attitudes on common pregnancy-related difficulties at work have undergone a fundamental shift.

Pregnancy claims have always been included in “sex discrimination” cases, with the initial emphasis being on whether a pregnant female employee was genuinely treated differently than any comparator male employee. This is not always an easy argument to establish given that men-comparators were not pregnant.

Employees who were pregnant also had the option of claiming that their specific pregnancy condition (such as gestational diabetes as opposed to, say, the need to drink water at work) rendered them “disabled,” and that, as a result, the Americans with Disabilities Act granted them the right to “reasonable accommodations” at work;

However, in the above case, given that the pregnancy was “temporary” in nature, it could be argued that the impairment did not meet the legal definition of a “d There was always a chance that pregnancy-related impairments would not be covered by the ADA as long as being pregnant was not regarded as a “disability” in and of itself.

The new Act aims to close all of the “loopholes.” The new rule makes it illegal for an employer to fail to make reasonable adjustments for a qualified employee’s recognized limits caused by pregnancy, delivery, or other associated medical problems. A physical or mental problem connected to, impacted by, or resulting from pregnancy, delivery, or associated medical conditions is referred to as a “known limitation” as well. Therefore, it is no longer necessary to discuss whether or not a female employee is treated differently from a male employee. Additionally, there is no longer any justification for determining whether a worker’s pregnancy constitutes a “disability” or if she suffers from a disease that fits the traditional definition of a “disability.”

An employee who is pregnant now simply has the right to ask for accommodations in the workplace that are required by a physical or mental condition that develops as a result of that pregnancy.

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

Practically speaking, this new rule mandates that Human Resources personnel handle requests for pregnant accommodations in a manner akin to how ADA requests have traditionally been handled:

1. The employee’s disclosure of her predicament and her affirmative request for assistance usually start the process. (Management often does not take the initiative to unilaterally impose a “accommodation” or assume that the employee has limits.)
2. The employee often offers medical evidence to back up their illness and the necessity for a reasonable accommodation. However, being extremely technical won’t be rewarded, like in the case of a worker who requests permission to sip water while working despite being clearly pregnant. Remember that one of the reasons this rule was enacted was to prevent employers from arbitrarily turning down little requests that would cost them little.
3. Management and the employee participate in a “interactive process” to determine whether the proposed accommodation will be advantageous to both parties or whether other options might be preferred.
4. A leave of absence might be a suitable modification. Be aware that without first coming to a conclusion through the interactive process, an employer cannot unilaterally impose that choice on an employee. Also take note that the company will not be able to refuse a leave to a pregnant employee based only on strict attendance or leave of absence regulations that it may ordinarily apply to others when the leave is sought by the employee.
5. The limitations of a requested accommodation, just like ADA requests, still include the idea that the employer is not obligated to tolerate a “undue hardship” in running the business.
6. In this situation, the legislation states that the essential activities of a work may be waived if they are only done as a temporary repair and if doing so can still be adequately accommodated, contrary to the ADA, which admits that the disabled employee may be held to performance of the “essential functions” of the job.

Who does this apply to?

Any employer with at least 15 employees.

What should employers be doing to prepare for this?

1. Examine the personnel policies and employee handbooks you currently have.

You should be including language that informs the employees that you will uphold their rights, and you should be on the lookout for anything that would imply otherwise. The language used should be open-ended enough to provide for the possibility that leave may be taken even after using allotted sick leave or FMLA leave.

You don’t want an employee to be able to argue that they failed to try to exercise their rights because the employee handbook failed to inform them of their existence or provide instructions on how to do so.

2. Train HR professionals and managers.

a. The new ground rules must be understood by all parties concerned. Employees will have rights that they previously lacked, and more employees will probably request greater accommodations as a result. Managers must be willing to consider that option.

b. Create a clear policy outlining how requests will be handled, taken into account, and approved.

1. In order to fulfill their needs, you should encourage employees to make them known. You should also keep track of how each request has been handled and document it.
2. Will there be a form, and formal action taken?
3. Must HR be involved?
4. Additionally, managers must be aware that an employee may not actually utilize “magic words” to legally request a “reasonable accommodation.” Any remarks that suggest an employee may be struggling to do tasks that could be affected by pregnancy should be taken note of, and the employee can be directed to HR to at least discuss the situation.
5. If there is no central monitoring, there may be multiple practices taking place in the same building, and an accommodation that one management approves for one department may set a precedent that the manager of the department after it disagrees with. The worst case scenario is when a manager approves a request and then HR wants to amend it. Therefore, a manager will have the exclusive authority to approve requests.
6. These steps should be thought through before the first request comes in.

c. Managers must maintain control over any behavior that could be construed as “harassment” of workers who request accommodations. With time, some workers can begin to perceive these people as being rewarded for doing less work or as getting various types of “special treatment.” Managers must act quickly, and HR must be contacted, if this leads to comments being made to or about the pregnant employee or other hostile behavior.

d. Everyone concerned must understand that neither pregnancy nor requests for accommodations may be used as a justification for retribution, whether it is in hiring, assessment, or any other situation.

3. A new poster is coming soon: Although a new version of the classic “Know Your Rights: Workplace Discrimination is Illegal” poster will likely be released with content referencing the new rule, no official poster has yet been produced.

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

Examples reported in previous litigation include:

1. “high risk” pregnancy
2. pregnancy-related carpal tunnel syndrome
3. gestational diabetes
4. severe dehydration
5. abnormal heart rhythms
6. symphysis pubis dysfunction
7. complications from breech presentation
8. other medical conditions which become exacerbated due to changing medication regimen as a result of pregnancy
9. preeclampsia
10. cervical insufficiency
11. separation anxiety
12. postpartum depression
13. pregnancy-related anemia
14. pregnancy-related sciatica
15. swelling, especially in the legs
16. pelvic inflammation

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

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

As with ADA requests, expect that the employee will first be asking for or suggesting an accommodation that fixes whatever “problem” she is having at work. Previously litigated cases have taken into account issues like the following, many of which come at little or no expense financially:

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

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

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

First of all, you should be aware that the Ohio Civil Rights Commission has long held the position that childbearing must be taken into consideration by the employer as a justification for a leave of absence for a female employee for a “reasonable” period of time, even if the employer offers no “sick leave” or insufficient sick leave to accommodate an employee’s pregnancy.

Whatever the case, the EEOC will now assume that the FMLA or regular sick leave is merely a starting point. Employers are not allowed to merely claim that no leave is available or that all leave has been used up. Going forward, the emphasis will be on determining whether giving further leave for an eligible purpose is acceptable in the given situation.

In the past, when a pregnancy occurred alongside a recognized impairment, for example, courts have taken these cases into consideration. The Federal Court of Appeals for Ohio has taken the stance that it does not accept a “bright-line rule” that specifies how many months, weeks, or days are categorically “enough” to permit a pregnancy-related absence. There have also been cases recorded where a leave was authorized and the employee then asked for further time off. – Although courts accept the idea that “indefinite” leave is not necessary, the time limit is actually determined by how much leave has already been granted, how much more is requested, whether there is some certainty that a subsequent, finite date will be sufficient for the employee’s return to work, and whether the employer can prove a “undue hardship” on its operations (a concept that may expand or contract depending on the size and circumstances of the operation).

In addition to the “letter of the law,” the EEOC has previously identified the following as “best practices” (i.e., not always legally required in all cases) in handling pregnancy-related issues; they may be useful to take into consideration at this time, while we wait for more definitive regulations:

General

1. Create, promote, and implement a strict policy based on the specifications of the applicable federal law.
2. Ensure that the policy covers the actions that could be construed as unlawful discrimination based on pregnancy, delivery, and related medical circumstances.
3. Verify that the policy offers several ways to file a complaint.
4. Regularly educate managers and staff about their legal and ethical obligations regarding pregnancy, childbirth, and related medical issues.
5. Examine pertinent laws and ordinances from the federal, state, and municipal levels as well as pertinent employer policies.
6. Conduct employee surveys, evaluate employment policies, and procedures to find and change any that would disadvantage women dealing with pregnancy, delivery, or other related medical issues, or that might exacerbate the consequences of prior discrimination in the workplace.
7. React quickly and effectively to reports of pregnant discrimination. Investigate concerns as soon as possible and completely. If necessary, take corrective action and put corrective and preventive measures in place to address the issue and stop it from happening again.
8. Prevent reprisals against job candidates and workers. Give applicants and workers reassurances that they will not face reprisal if they report instances of discrimination based on pregnancy, childbirth, or related medical problems, either internally or externally, or if they provide information about such instances. Watch out for the implementation of these anti-retaliation measures.

Hiring, Promotion, and Other Employment Decisions

1. Pay close attention to the candidate’s or employee’s qualifications for the open position. During interviews or performance reviews, avoid bringing up the subject of a candidate’s or employee’s pregnancy, children, future plans for a family, or any other relevant matter.
2. Create precise, position-specific qualification criteria for each position that take into account the responsibilities, functions, and skills of the role and reduce the likelihood of gender stereotyping and discrimination based on pregnancy, delivery, or other related medical conditions. When selecting candidates, make sure these criteria are regularly followed.
3. Ensure that all qualified staff are informed of job opportunities, acting roles, and promotions.
4. Don’t base your hiring, promotion, or other job choices on preconceived notions about women who are experiencing pregnancy, childbirth, or other related medical issues.
5. Pay attention to work experience and accomplishments when evaluating and contrasting candidates’ or employees’ work histories for hiring or promotion purposes, and give cumulative relevant experience the same weight as would be given to employees with unbroken service.
6. Ensure that employment decisions are thoroughly documented and, to the extent possible, communicated to those who will be impacted. Make sure managers keep records on file for at least the statutory minimum amounts of time.
7. Inform potential employees and candidates about fetal dangers, and if practical, grant requests for reassignment that ensue.

Leave and Other Fringe Benefits

1. Only women who are experiencing certain symptoms may be granted leave relating to pregnancy, childbirth, or conditions that are linked. Men and women in comparable circumstances must be granted parental leave under the same conditions.
2. If there is a policy restricting leave (such as no leave during a probationary period), consider whether pregnant employees are disproportionately affected by it and, if so, whether it is essential for business operations. Verify if it is stated in the policy that an employee may be eligible for time off as a reasonable accommodation.
3. Examine workplace regulations that restrict employee flexibility, such as set working hours and required overtime, to make sure they are required for efficient corporate operations.
4. Discuss how their job obligations will be handled in their absence with employees who intend to take parental, maternity, or other leave.
5. Ensure that workers on leaves of absence for reasons relating to pregnancy, delivery, or other medical issues have access to training, if desired, while away from their jobs.

Terms and Conditions of Employment

1. Keep an eye out for patterns of potential discrimination based on maternity, delivery, or associated medical issues in the remuneration practices and performance rating systems. Make sure that performance evaluations and compensation policies are based on employees’ real job performance rather than on preconceived notions about these situations.
2. Examine any light duty regulations. Make sure light duty policies are written so that pregnant employees have the same access to light duty as those who have similar constraints on their capacity to work.
3. If possible, temporarily reassign job responsibilities that employees are unable to complete due to pregnancy or other relevant medical issues.
4. Prevent unjustified harassment. Adopt and widely disseminate a robust anti-harassment policy that covers information about harassment related to pregnancy; regularly train managers and employees on the policy’s provisions; include information about harassment of breastfeeding employees in the policy and training; and vigorously enforce the anti-harassment policy.
5. Develop the potential of workers, managers, and executives regardless of whether they are expecting, giving birth, or dealing with other health issues.
6. Provide training to all employees, including those affected by pregnancy or other circumstances, to ensure that everyone has the knowledge needed to do their duties properly.
7. Ensure that employees are given equal opportunity to participate in complex or high-profile work assignments that will enhance their skills and experience, and help them ascend to upper-level positions.
8. Provide employees with equal access to workplace networks to facilitate the development of professional relationships and the exchange of ideas and information.

Reasonable Accommodation

1. Establish a procedure for promptly evaluating reasonable accommodation requests from staff members who experience pregnancy-related difficulties and for granting accommodations when necessary.
2. Clearly state in any written reasonable accommodation policy that individuals with transitory impairments, including pregnancy-related impairments, may be eligible for reasonable accommodations.
3. Ensure that all employees have access to any written policies the employer may have on reasonable accommodations, and periodically remind them that, barring exceptional circumstances, the business will make reasonable accommodations for qualified individuals with disabilities.
4. Managers should get training on identifying and responding to requests for reasonable accommodations.
5. If a specific accommodation requested by an employee cannot be granted, state the reason why and offer to look into possible alternatives.

There will undoubtedly be a lot of press leading up to the enforcement of this new federal legislation protecting pregnant workers, which takes effect on June 27. Employers would be wise to start implementing policies and compliance initiatives right away rather than waiting.

Contacts: +19063843849: Email: info@hrmeducate.com