Filter By Service Area
Filter By Title
Filter By Office

Resources

Some of the High-Points of the Final Pregnant Worker Fairness Act Regulations!

By now, most of us are aware that last week the EEOC published the final regulations for the Pregnant Worker Fairness Act, all 400 pages of them. I thought that it might be helpful to hit some of the high points of the Regulations.

The Regulations will become effective around June 12, 2024, although the Act itself is already in effect.

Big Picture:

The PWFA and Regulations require employers to make “ADA-like accommodations” for known limitations related to, affected by, or arising out of pregnancy, childbirth, and related medical conditions, including but not limited to IVF treatments and abortions.

The Regulations allow for some exceptions for religious organizations, but they will be taken on a case-by-case basis; meaning they will be few and far between.

A “known limitation” is one communicated by the applicant, employee or their representative. This is probably going to place a slightly higher burden of communication upon the employee than does the ADA.

“Related to, affected by, or arising out of" means that the pregnancy, childbirth or related medical condition need not be the only, sole, original or substantial cause of the limitation for which the accommodation is requested. This will greatly expand an employer’s obligation to make reasonable accommodations.

The “limitation” requiring and accommodation:

  • Need not rise to level of disability.
  • May be modest, minor, or episodic.
  • Must be of the applicant/employee themselves-not family
  • Can be related to maintain employee/fetus health or to seek healthcare related to the pregnancy, childbirth, or related medical condition. (Employees can seek reasonable accommodation to alleviate pain or risk to health).

An applicant or employee is “qualified” if she can currently perform the essential functions of her job or her inability to do so is “temporary.” 

“Temporary” means the applicant/employee will be able to perform the essential functions “in the near future”.

“In the near future” means up to forty (40) weeks.

Temporary suspension of one or more essential function may be required if the employee can resume performing the essential functions in the near future unless the employer can establish undue hardship.

Additional factors to be considered when evaluating the suspension of essential function: length of time of suspension, other work that employee can perform, nature and frequency of the essential function, has employer-provided similarly situated employees with suspension of essential functions, can temporary workers be hired to perform the essential functions and, can employer simply not perform the essential functions for the duration of the employee’s leave.

This does not mean that 40 weeks of leave is guaranteed. An employer may still argue undue hardship.

“Undue hardship” is similar to ADA and means “significant difficulty or expense.”

Certain “predictable assessments” will almost always be a reasonable accommodation:

  • allowing an employee to carry or keep water near and drink, as needed (This is different than a water break.)
  • allowing an employee to take additional restroom breaks, as needed;
  • allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
  • allowing an employee to take breaks to eat and drink, as needed.

Other examples of reasonable accommodations include: closer parking/flexible hours/proper size uniform and PPE/additional bathroom time/leave time/relieved of strenuous duties/avoid exposure to dangerous compounds/telework/changing schedule/prenatal health appointment/limited exposure to secondhand smoke/time off for IVF treatment/termination of pregnancy.

Employer and employee must engage in ADA-like “interactive process.” DOCUMENT!

Like ADA, employers can limit damages if they can show that they made a good-faith effort to accommodate. DOCUMENT!

Employers cannot require employees to accept an accommodation without first discussing it. The Regulations do not say that the employer and employee must agree on the accommodation.

Employers may not require employees to take leave if another reasonable accommodation would allow the employees to keep working.

Employers can ask questions to verify that the limitation is related to pregnancy, childbirth, or related medical condition, but an informal conversation will usually be sufficient.

Employee requests for accommodation can be minimal: 1. Identify limitation related to PCRMC, and 2. Requires adjustment to work due to limitation.

I am having trouble getting to work at my scheduled starting time because of morning sickness.  This will be sufficient.

Employee can choose to use paid leave or unpaid leave to same extent that employer allows other employees to use leave.

Providing “interim accommodation” while employer determines if requested accommodation is reasonable is not required but will be a “best practice.”

Suggestions:

Confirm that you have put up the PWFA poster.

Train your supervisors to spot PWFA issues and requests for accommodation and to push them to HR.

Develop your written PWFA policy.

Develop your PWFA Accommodation Request form. You cannot require an employee to complete the form, but HR can fill it out and use it to track requests.

Some of the High-Points of the Final Pregnant Worker Fairness Act Regulations!

By now, most of us are aware that last week the EEOC published the final regulations for the Pregnant Worker Fairness Act, all 400 pages of them. I thought that it might be helpful to hit some of the high points of the Regulations.

The Regulations will become effective around June 12, 2024, although the Act itself is already in effect.

Big Picture:

The PWFA and Regulations require employers to make “ADA-like accommodations” for known limitations related to, affected by, or arising out of pregnancy, childbirth, and related medical conditions, including but not limited to IVF treatments and abortions.

The Regulations allow for some exceptions for religious organizations, but they will be taken on a case-by-case basis; meaning they will be few and far between.

A “known limitation” is one communicated by the applicant, employee or their representative. This is probably going to place a slightly higher burden of communication upon the employee than does the ADA.

“Related to, affected by, or arising out of" means that the pregnancy, childbirth or related medical condition need not be the only, sole, original or substantial cause of the limitation for which the accommodation is requested. This will greatly expand an employer’s obligation to make reasonable accommodations.

The “limitation” requiring and accommodation:

  • Need not rise to level of disability.
  • May be modest, minor, or episodic.
  • Must be of the applicant/employee themselves-not family
  • Can be related to maintain employee/fetus health or to seek healthcare related to the pregnancy, childbirth, or related medical condition. (Employees can seek reasonable accommodation to alleviate pain or risk to health).

An applicant or employee is “qualified” if she can currently perform the essential functions of her job or her inability to do so is “temporary.” 

“Temporary” means the applicant/employee will be able to perform the essential functions “in the near future”.

“In the near future” means up to forty (40) weeks.

Temporary suspension of one or more essential function may be required if the employee can resume performing the essential functions in the near future unless the employer can establish undue hardship.

Additional factors to be considered when evaluating the suspension of essential function: length of time of suspension, other work that employee can perform, nature and frequency of the essential function, has employer-provided similarly situated employees with suspension of essential functions, can temporary workers be hired to perform the essential functions and, can employer simply not perform the essential functions for the duration of the employee’s leave.

This does not mean that 40 weeks of leave is guaranteed. An employer may still argue undue hardship.

“Undue hardship” is similar to ADA and means “significant difficulty or expense.”

Certain “predictable assessments” will almost always be a reasonable accommodation:

  • allowing an employee to carry or keep water near and drink, as needed (This is different than a water break.)
  • allowing an employee to take additional restroom breaks, as needed;
  • allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
  • allowing an employee to take breaks to eat and drink, as needed.

Other examples of reasonable accommodations include: closer parking/flexible hours/proper size uniform and PPE/additional bathroom time/leave time/relieved of strenuous duties/avoid exposure to dangerous compounds/telework/changing schedule/prenatal health appointment/limited exposure to secondhand smoke/time off for IVF treatment/termination of pregnancy.

Employer and employee must engage in ADA-like “interactive process.” DOCUMENT!

Like ADA, employers can limit damages if they can show that they made a good-faith effort to accommodate. DOCUMENT!

Employers cannot require employees to accept an accommodation without first discussing it. The Regulations do not say that the employer and employee must agree on the accommodation.

Employers may not require employees to take leave if another reasonable accommodation would allow the employees to keep working.

Employers can ask questions to verify that the limitation is related to pregnancy, childbirth, or related medical condition, but an informal conversation will usually be sufficient.

Employee requests for accommodation can be minimal: 1. Identify limitation related to PCRMC, and 2. Requires adjustment to work due to limitation.

I am having trouble getting to work at my scheduled starting time because of morning sickness.  This will be sufficient.

Employee can choose to use paid leave or unpaid leave to same extent that employer allows other employees to use leave.

Providing “interim accommodation” while employer determines if requested accommodation is reasonable is not required but will be a “best practice.”

Suggestions:

Confirm that you have put up the PWFA poster.

Train your supervisors to spot PWFA issues and requests for accommodation and to push them to HR.

Develop your written PWFA policy.

Develop your PWFA Accommodation Request form. You cannot require an employee to complete the form, but HR can fill it out and use it to track requests.

Some of the High-Points of the Final Pregnant Worker Fairness Act Regulations!

By now, most of us are aware that last week the EEOC published the final regulations for the Pregnant Worker Fairness Act, all 400 pages of them. I thought that it might be helpful to hit some of the high points of the Regulations.

The Regulations will become effective around June 12, 2024, although the Act itself is already in effect.

Big Picture:

The PWFA and Regulations require employers to make “ADA-like accommodations” for known limitations related to, affected by, or arising out of pregnancy, childbirth, and related medical conditions, including but not limited to IVF treatments and abortions.

The Regulations allow for some exceptions for religious organizations, but they will be taken on a case-by-case basis; meaning they will be few and far between.

A “known limitation” is one communicated by the applicant, employee or their representative. This is probably going to place a slightly higher burden of communication upon the employee than does the ADA.

“Related to, affected by, or arising out of" means that the pregnancy, childbirth or related medical condition need not be the only, sole, original or substantial cause of the limitation for which the accommodation is requested. This will greatly expand an employer’s obligation to make reasonable accommodations.

The “limitation” requiring and accommodation:

  • Need not rise to level of disability.
  • May be modest, minor, or episodic.
  • Must be of the applicant/employee themselves-not family
  • Can be related to maintain employee/fetus health or to seek healthcare related to the pregnancy, childbirth, or related medical condition. (Employees can seek reasonable accommodation to alleviate pain or risk to health).

An applicant or employee is “qualified” if she can currently perform the essential functions of her job or her inability to do so is “temporary.” 

“Temporary” means the applicant/employee will be able to perform the essential functions “in the near future”.

“In the near future” means up to forty (40) weeks.

Temporary suspension of one or more essential function may be required if the employee can resume performing the essential functions in the near future unless the employer can establish undue hardship.

Additional factors to be considered when evaluating the suspension of essential function: length of time of suspension, other work that employee can perform, nature and frequency of the essential function, has employer-provided similarly situated employees with suspension of essential functions, can temporary workers be hired to perform the essential functions and, can employer simply not perform the essential functions for the duration of the employee’s leave.

This does not mean that 40 weeks of leave is guaranteed. An employer may still argue undue hardship.

“Undue hardship” is similar to ADA and means “significant difficulty or expense.”

Certain “predictable assessments” will almost always be a reasonable accommodation:

  • allowing an employee to carry or keep water near and drink, as needed (This is different than a water break.)
  • allowing an employee to take additional restroom breaks, as needed;
  • allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
  • allowing an employee to take breaks to eat and drink, as needed.

Other examples of reasonable accommodations include: closer parking/flexible hours/proper size uniform and PPE/additional bathroom time/leave time/relieved of strenuous duties/avoid exposure to dangerous compounds/telework/changing schedule/prenatal health appointment/limited exposure to secondhand smoke/time off for IVF treatment/termination of pregnancy.

Employer and employee must engage in ADA-like “interactive process.” DOCUMENT!

Like ADA, employers can limit damages if they can show that they made a good-faith effort to accommodate. DOCUMENT!

Employers cannot require employees to accept an accommodation without first discussing it. The Regulations do not say that the employer and employee must agree on the accommodation.

Employers may not require employees to take leave if another reasonable accommodation would allow the employees to keep working.

Employers can ask questions to verify that the limitation is related to pregnancy, childbirth, or related medical condition, but an informal conversation will usually be sufficient.

Employee requests for accommodation can be minimal: 1. Identify limitation related to PCRMC, and 2. Requires adjustment to work due to limitation.

I am having trouble getting to work at my scheduled starting time because of morning sickness.  This will be sufficient.

Employee can choose to use paid leave or unpaid leave to same extent that employer allows other employees to use leave.

Providing “interim accommodation” while employer determines if requested accommodation is reasonable is not required but will be a “best practice.”

Suggestions:

Confirm that you have put up the PWFA poster.

Train your supervisors to spot PWFA issues and requests for accommodation and to push them to HR.

Develop your written PWFA policy.

Develop your PWFA Accommodation Request form. You cannot require an employee to complete the form, but HR can fill it out and use it to track requests.

Some of the High-Points of the Final Pregnant Worker Fairness Act Regulations!

By now, most of us are aware that last week the EEOC published the final regulations for the Pregnant Worker Fairness Act, all 400 pages of them. I thought that it might be helpful to hit some of the high points of the Regulations.

The Regulations will become effective around June 12, 2024, although the Act itself is already in effect.

Big Picture:

The PWFA and Regulations require employers to make “ADA-like accommodations” for known limitations related to, affected by, or arising out of pregnancy, childbirth, and related medical conditions, including but not limited to IVF treatments and abortions.

The Regulations allow for some exceptions for religious organizations, but they will be taken on a case-by-case basis; meaning they will be few and far between.

A “known limitation” is one communicated by the applicant, employee or their representative. This is probably going to place a slightly higher burden of communication upon the employee than does the ADA.

“Related to, affected by, or arising out of" means that the pregnancy, childbirth or related medical condition need not be the only, sole, original or substantial cause of the limitation for which the accommodation is requested. This will greatly expand an employer’s obligation to make reasonable accommodations.

The “limitation” requiring and accommodation:

  • Need not rise to level of disability.
  • May be modest, minor, or episodic.
  • Must be of the applicant/employee themselves-not family
  • Can be related to maintain employee/fetus health or to seek healthcare related to the pregnancy, childbirth, or related medical condition. (Employees can seek reasonable accommodation to alleviate pain or risk to health).

An applicant or employee is “qualified” if she can currently perform the essential functions of her job or her inability to do so is “temporary.” 

“Temporary” means the applicant/employee will be able to perform the essential functions “in the near future”.

“In the near future” means up to forty (40) weeks.

Temporary suspension of one or more essential function may be required if the employee can resume performing the essential functions in the near future unless the employer can establish undue hardship.

Additional factors to be considered when evaluating the suspension of essential function: length of time of suspension, other work that employee can perform, nature and frequency of the essential function, has employer-provided similarly situated employees with suspension of essential functions, can temporary workers be hired to perform the essential functions and, can employer simply not perform the essential functions for the duration of the employee’s leave.

This does not mean that 40 weeks of leave is guaranteed. An employer may still argue undue hardship.

“Undue hardship” is similar to ADA and means “significant difficulty or expense.”

Certain “predictable assessments” will almost always be a reasonable accommodation:

  • allowing an employee to carry or keep water near and drink, as needed (This is different than a water break.)
  • allowing an employee to take additional restroom breaks, as needed;
  • allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
  • allowing an employee to take breaks to eat and drink, as needed.

Other examples of reasonable accommodations include: closer parking/flexible hours/proper size uniform and PPE/additional bathroom time/leave time/relieved of strenuous duties/avoid exposure to dangerous compounds/telework/changing schedule/prenatal health appointment/limited exposure to secondhand smoke/time off for IVF treatment/termination of pregnancy.

Employer and employee must engage in ADA-like “interactive process.” DOCUMENT!

Like ADA, employers can limit damages if they can show that they made a good-faith effort to accommodate. DOCUMENT!

Employers cannot require employees to accept an accommodation without first discussing it. The Regulations do not say that the employer and employee must agree on the accommodation.

Employers may not require employees to take leave if another reasonable accommodation would allow the employees to keep working.

Employers can ask questions to verify that the limitation is related to pregnancy, childbirth, or related medical condition, but an informal conversation will usually be sufficient.

Employee requests for accommodation can be minimal: 1. Identify limitation related to PCRMC, and 2. Requires adjustment to work due to limitation.

I am having trouble getting to work at my scheduled starting time because of morning sickness.  This will be sufficient.

Employee can choose to use paid leave or unpaid leave to same extent that employer allows other employees to use leave.

Providing “interim accommodation” while employer determines if requested accommodation is reasonable is not required but will be a “best practice.”

Suggestions:

Confirm that you have put up the PWFA poster.

Train your supervisors to spot PWFA issues and requests for accommodation and to push them to HR.

Develop your written PWFA policy.

Develop your PWFA Accommodation Request form. You cannot require an employee to complete the form, but HR can fill it out and use it to track requests.

Some of the High-Points of the Final Pregnant Worker Fairness Act Regulations!

By now, most of us are aware that last week the EEOC published the final regulations for the Pregnant Worker Fairness Act, all 400 pages of them. I thought that it might be helpful to hit some of the high points of the Regulations.

The Regulations will become effective around June 12, 2024, although the Act itself is already in effect.

Big Picture:

The PWFA and Regulations require employers to make “ADA-like accommodations” for known limitations related to, affected by, or arising out of pregnancy, childbirth, and related medical conditions, including but not limited to IVF treatments and abortions.

The Regulations allow for some exceptions for religious organizations, but they will be taken on a case-by-case basis; meaning they will be few and far between.

A “known limitation” is one communicated by the applicant, employee or their representative. This is probably going to place a slightly higher burden of communication upon the employee than does the ADA.

“Related to, affected by, or arising out of" means that the pregnancy, childbirth or related medical condition need not be the only, sole, original or substantial cause of the limitation for which the accommodation is requested. This will greatly expand an employer’s obligation to make reasonable accommodations.

The “limitation” requiring and accommodation:

  • Need not rise to level of disability.
  • May be modest, minor, or episodic.
  • Must be of the applicant/employee themselves-not family
  • Can be related to maintain employee/fetus health or to seek healthcare related to the pregnancy, childbirth, or related medical condition. (Employees can seek reasonable accommodation to alleviate pain or risk to health).

An applicant or employee is “qualified” if she can currently perform the essential functions of her job or her inability to do so is “temporary.” 

“Temporary” means the applicant/employee will be able to perform the essential functions “in the near future”.

“In the near future” means up to forty (40) weeks.

Temporary suspension of one or more essential function may be required if the employee can resume performing the essential functions in the near future unless the employer can establish undue hardship.

Additional factors to be considered when evaluating the suspension of essential function: length of time of suspension, other work that employee can perform, nature and frequency of the essential function, has employer-provided similarly situated employees with suspension of essential functions, can temporary workers be hired to perform the essential functions and, can employer simply not perform the essential functions for the duration of the employee’s leave.

This does not mean that 40 weeks of leave is guaranteed. An employer may still argue undue hardship.

“Undue hardship” is similar to ADA and means “significant difficulty or expense.”

Certain “predictable assessments” will almost always be a reasonable accommodation:

  • allowing an employee to carry or keep water near and drink, as needed (This is different than a water break.)
  • allowing an employee to take additional restroom breaks, as needed;
  • allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
  • allowing an employee to take breaks to eat and drink, as needed.

Other examples of reasonable accommodations include: closer parking/flexible hours/proper size uniform and PPE/additional bathroom time/leave time/relieved of strenuous duties/avoid exposure to dangerous compounds/telework/changing schedule/prenatal health appointment/limited exposure to secondhand smoke/time off for IVF treatment/termination of pregnancy.

Employer and employee must engage in ADA-like “interactive process.” DOCUMENT!

Like ADA, employers can limit damages if they can show that they made a good-faith effort to accommodate. DOCUMENT!

Employers cannot require employees to accept an accommodation without first discussing it. The Regulations do not say that the employer and employee must agree on the accommodation.

Employers may not require employees to take leave if another reasonable accommodation would allow the employees to keep working.

Employers can ask questions to verify that the limitation is related to pregnancy, childbirth, or related medical condition, but an informal conversation will usually be sufficient.

Employee requests for accommodation can be minimal: 1. Identify limitation related to PCRMC, and 2. Requires adjustment to work due to limitation.

I am having trouble getting to work at my scheduled starting time because of morning sickness.  This will be sufficient.

Employee can choose to use paid leave or unpaid leave to same extent that employer allows other employees to use leave.

Providing “interim accommodation” while employer determines if requested accommodation is reasonable is not required but will be a “best practice.”

Suggestions:

Confirm that you have put up the PWFA poster.

Train your supervisors to spot PWFA issues and requests for accommodation and to push them to HR.

Develop your written PWFA policy.

Develop your PWFA Accommodation Request form. You cannot require an employee to complete the form, but HR can fill it out and use it to track requests.

Some of the High-Points of the Final Pregnant Worker Fairness Act Regulations!

By now, most of us are aware that last week the EEOC published the final regulations for the Pregnant Worker Fairness Act, all 400 pages of them. I thought that it might be helpful to hit some of the high points of the Regulations.

The Regulations will become effective around June 12, 2024, although the Act itself is already in effect.

Big Picture:

The PWFA and Regulations require employers to make “ADA-like accommodations” for known limitations related to, affected by, or arising out of pregnancy, childbirth, and related medical conditions, including but not limited to IVF treatments and abortions.

The Regulations allow for some exceptions for religious organizations, but they will be taken on a case-by-case basis; meaning they will be few and far between.

A “known limitation” is one communicated by the applicant, employee or their representative. This is probably going to place a slightly higher burden of communication upon the employee than does the ADA.

“Related to, affected by, or arising out of" means that the pregnancy, childbirth or related medical condition need not be the only, sole, original or substantial cause of the limitation for which the accommodation is requested. This will greatly expand an employer’s obligation to make reasonable accommodations.

The “limitation” requiring and accommodation:

  • Need not rise to level of disability.
  • May be modest, minor, or episodic.
  • Must be of the applicant/employee themselves-not family
  • Can be related to maintain employee/fetus health or to seek healthcare related to the pregnancy, childbirth, or related medical condition. (Employees can seek reasonable accommodation to alleviate pain or risk to health).

An applicant or employee is “qualified” if she can currently perform the essential functions of her job or her inability to do so is “temporary.” 

“Temporary” means the applicant/employee will be able to perform the essential functions “in the near future”.

“In the near future” means up to forty (40) weeks.

Temporary suspension of one or more essential function may be required if the employee can resume performing the essential functions in the near future unless the employer can establish undue hardship.

Additional factors to be considered when evaluating the suspension of essential function: length of time of suspension, other work that employee can perform, nature and frequency of the essential function, has employer-provided similarly situated employees with suspension of essential functions, can temporary workers be hired to perform the essential functions and, can employer simply not perform the essential functions for the duration of the employee’s leave.

This does not mean that 40 weeks of leave is guaranteed. An employer may still argue undue hardship.

“Undue hardship” is similar to ADA and means “significant difficulty or expense.”

Certain “predictable assessments” will almost always be a reasonable accommodation:

  • allowing an employee to carry or keep water near and drink, as needed (This is different than a water break.)
  • allowing an employee to take additional restroom breaks, as needed;
  • allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
  • allowing an employee to take breaks to eat and drink, as needed.

Other examples of reasonable accommodations include: closer parking/flexible hours/proper size uniform and PPE/additional bathroom time/leave time/relieved of strenuous duties/avoid exposure to dangerous compounds/telework/changing schedule/prenatal health appointment/limited exposure to secondhand smoke/time off for IVF treatment/termination of pregnancy.

Employer and employee must engage in ADA-like “interactive process.” DOCUMENT!

Like ADA, employers can limit damages if they can show that they made a good-faith effort to accommodate. DOCUMENT!

Employers cannot require employees to accept an accommodation without first discussing it. The Regulations do not say that the employer and employee must agree on the accommodation.

Employers may not require employees to take leave if another reasonable accommodation would allow the employees to keep working.

Employers can ask questions to verify that the limitation is related to pregnancy, childbirth, or related medical condition, but an informal conversation will usually be sufficient.

Employee requests for accommodation can be minimal: 1. Identify limitation related to PCRMC, and 2. Requires adjustment to work due to limitation.

I am having trouble getting to work at my scheduled starting time because of morning sickness.  This will be sufficient.

Employee can choose to use paid leave or unpaid leave to same extent that employer allows other employees to use leave.

Providing “interim accommodation” while employer determines if requested accommodation is reasonable is not required but will be a “best practice.”

Suggestions:

Confirm that you have put up the PWFA poster.

Train your supervisors to spot PWFA issues and requests for accommodation and to push them to HR.

Develop your written PWFA policy.

Develop your PWFA Accommodation Request form. You cannot require an employee to complete the form, but HR can fill it out and use it to track requests.