More Pregnant Worker Fairness Act Guidance
October 7, 2023
Last Wednesday attendees at ASE’s Employment Law Briefing received excellent information about a myriad of pending and new employment and labor compliance issues including the recently enacted Pregnant Worker Fairness Act (PWFA). Among many recent employment and labor law developments, Anne-Marie V. Welch, Labor and Employment Partner at Clark Hill PLC addressed the PWFA. At about the same time last week EEOC legal counsel Carol Miaskoff was providing new information and guidance on this law.
In a webinar addressing questions on the PWFA, EEOC counsel Ms. Miaskoff clarified that the new law does not cover partners of someone who gave birth. It also does not apply protections to adoptions. Following up on the EEOC’s preliminary regulations issued in August the EEOC legal counsel stated the law is “focused on the employee who is pregnant and who is delivering the child so it does not apply to partners, parents, etc.” Further, “its not going to apply to allow, say, leave or telework in the event of adoption.”
But for those employers covered do not lose sight of the Family and Medical Leave Act as well as any state laws that may extend job protection and leave to partners in those covered circumstances. The PWFA is intended to address childbirth and adoption is not involving the process of pregnancy, childbirth and those medical consequences associated with it.
Another area of the PWFA that is getting a lot of attention is around medical documentation. Interpretation of the PWFA and its proposed regulations does not give employers as much grounds as say the FMLA or ADA to ask for medical documentation to support an accommodation request. The PWFA regulations state if a business decides to require medical document they should do so if reasonable. This created some confusion for employers.
Ms. Maiskoff stated businesses should not look for doctor’s notes when the employee’s request for accommodation is based upon “obvious limitations.” She cited simple accommodations such as more bathroom breaks or the request for a work uniform that fits during pregnancy as examples of situations where medical documentation may be unreasonable.
But what about less understood medical conditions such as postpartum depression? Ms. Maiskoff stated the documentation should be based upon “the accommodation, rather than the condition.”
Ms. Miaskoff addressed the issue of where the employee’ s pregnancy condition would cause her not be able to perform the essential functions of the job. Giving the example of a pregnant employee’s job requiring handling of dangerous chemicals. The PWFA allows for the accommodation of changing an employee’s job during pregnancy. This can only be temporary until after birth. Also keep in mind this has to be at the request of the employee. Under the Pregnancy Discrimination Act employers may not require a person to change jobs just because they are pregnant and the job presents a potential danger to the pregnant worker or their child.
The counsel for the EEOC also made clear that it is the employer who is responsible for making the changes to the job for accommodation purposes. This point is not made in the law or the rule but it is a position based upon the EEOC’s interpretation of the PWFA.
Changes to the job that impact performance issues should be suspended until the person can do the job again and after the temporary change is over with. Not being able to do a part of the job as accommodated under the PWFA should not result in a lower performance rating against the employee. Suspension of the essential function should result in performance standards being adjusted during that period too to “avoid a punitive situation”.
ASE will continue to monitor developments around this new law so ASE members can adopt and address their practices and policies properly.
Source: EEOC Atty. Tackles Thorny Questions on New Pregnancy Law. Law 360 Employment Authority (9/27/2023)
By Michael Burns, courtesy of SBAM-approved partner, ASE.