NOTE FROM ROBIN: The submit beneath was emailed to our subscribers as a Constangy authorized bulletin on Tuesday, August 8. Nonetheless, this weblog submit hyperlinks to the official copy of the proposed laws, which had not been printed within the Federal Register as of Tuesday. This model additionally has some artwork and prettier colours.

As most of you already know, the Pregnant Staff Equity Act took impact on June 27, however employers had nearly no steerage relating to comply.

The PWFA requires employers with 15 or extra staff to make cheap Lodging for the “recognized limitations” of candidates and staff associated to being pregnant and associated situations.

This previous Monday, the U.S. Equal Employment Alternative Fee – which is able to implement the PWFA – issued proposed laws. When you have had dealings with cheap lodging underneath the People with Disabilities Act, you’ll get a particular sense of deja vu. Nonetheless, there are some vital variations, and that’s what I’ll concentrate on right here.

Circumstances coated

In distinction with the ADA, the PWFA doesn’t require that an worker be “considerably restricted” and doesn’t require that the situation be comparatively long run in nature. As a substitute, the PWFA is meant to handle the constraints that come up throughout being pregnant, together with morning illness, lifting necessities, postpartum despair, and different situations that will go away in a comparatively brief time.

Not surprisingly, the PWFA applies to situations that will happen outdoors the roughly 9 months of being pregnant, together with attempting to get pregnant and attempting to not be pregnant. Along with being pregnant, childbirth, and labor, the laws say that the next is a “non-exhaustive record” of situations that will probably be coated if associated to being pregnant:

[M]iscarriage, stillbirth, or abortion; infertility; fertility remedy; ectopic being pregnant; preterm labor; pelvic prolapse; nerve accidents; cesarean or perineal wound an infection; maternal cardiometabolic illness; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; power migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, ft, or fingers; hypertension; an infection; antenatal (throughout being pregnant) nervousness, despair, or psychosis; postpartum despair, nervousness, or psychosis; frequent urination; incontinence; lack of stability; imaginative and prescient adjustments; varicose veins; adjustments in hormone ranges; vaginal bleeding; menstrual cycles; use of contraception; and lactation and situations associated to lactation . . ..  

“Identified limitation”

In contrast to the ADA, the PWFA has extra of a laid-back cheap lodging course of. Usually, the EEOC envisions that employers will obtain casual, word-of-mouth requests for being pregnant lodging. In lots of circumstances, the employer is not going to want a health care provider’s observe. Employers wouldn’t be allowed to require that lodging requests be made in writing or by filling out a type.

Additionally, if the situation is clear (for instance, an worker who’s eight months pregnant), the employer wouldn’t be anticipated to have to substantiate the situation, though it would nonetheless must get assist from the worker’s well being care supplier in regards to the want for lodging. As with the ADA, “mitigating measures” which can be good will not be thought-about, however unhealthy “mitigating measures” (for instance, if the worker has to take remedy with unhealthy negative effects) should be.

“Certified particular person”

Below the PWFA, a pregnant worker is “certified” if she will be able to carry out the important features of her job with or and not using a cheap lodging, OR if she is briefly unable to carry out a vital operate of her job however will probably be ready to take action once more “within the close to future.” The EEOC proposes to make use of 40 weeks as “the close to future,” that means that if the mom can carry out her important job features inside 40 weeks of the time that the operate is suspended, she is “certified.” The 40 weeks relies on the period of a traditional, full-term being pregnant. Nonetheless, the EEOC has requested for feedback as as to if it ought to broaden this era to a full 12 months.

Figuring out whether or not a specific job operate is “important” (versus “marginal”) could be completed in primarily the identical manner that it’s completed underneath the ADA.

Cheap lodging

The definition of “cheap lodging” underneath the PWFA is actually the identical as underneath the ADA. however the PWFA definition contains

breaks to be used of the restroom, ingesting, consuming, and/or resting; acquisition or modification of kit, uniforms, or units, together with units that help with lifting or carrying . . . offering seating for jobs that require standing, or standing for jobs that require sitting . . ..

Below the proposed laws, employers would even be required to contemplate letting staff with pregnancy-related limitations take part in a pre-existing mild obligation program, even when that program is generally accessible solely to staff who’re injured on the job.

Paid or unpaid go away may very well be one other sort of cheap lodging, however employers mustn’t require staff to take go away if the staff are capable of proceed working and like to take action.

Accommodating lactation wants is comparable to what’s now required underneath the PUMP for Nursing Moms Act, though the PWFA laws would require employers to

• Present lactation lodging past one 12 months after the infant’s start.
• Be sure that the lactation space “is in cheap proximity to the worker’s typical work space.
• Be sure that the lactation space is “repeatedly cleaned; that it has electrical energy, acceptable seating, and a floor enough to position a breast pump; and that it’s in cheap proximity to a sink, working water, and a fridge for storing milk.”

“Predictable assessments”

The proposed laws embrace an inventory of lodging that the EEOC says will virtually at all times be discovered to be cheap and that employers ought to grant with out asking for documentation:

• Letting the person preserve helpful water or one other beverage all through the workday.
• Offering further lavatory breaks.
• Letting the person sit or stand.
• Letting the person have further breaks for consuming and ingesting.

The “interactive course of” and documentation

Below the PWFA (the statute), it’s illegal for an employer to require an worker to just accept an inexpensive lodging with out first going by means of the interactive course of.

An employer can request documentation, however it’s extra restricted in that regard than underneath the ADA. It might be all proper for the employer to request documentation to substantiate the worker’s situation, that the situation is pregnancy-related, and that work-related changes must be made. The request will be made to an acceptable well being care supplier, however the employer wouldn’t be capable of ship the worker to a well being care supplier of the employer’s selection.

The proposed laws warn employers that making requests for documentation that aren’t “cheap” can violate the PWFA. “Unreasonable” requests for documentation would come with the next:

• Requests made regardless that the worker’s situation and wish for lodging are apparent.
• Requests made regardless that the worker has already supplied sufficient documentation.
• Requests for documentation when the worker has requested for an lodging that the EEOC has included in its “predictive assessments” class.
• Any request for documentation when the worker wants lactation lodging.

Violations

Nor surprisingly, it’s a violation of the PWFA for an employer to refuse to accommodate an applicant or worker’s recognized pregnancy-related limitations except doing so could be an undue hardship. The proposed laws additionally present that an undue delay in making an lodging would violate the regulation. (The EEOC recommends that, if an employer foresees a delay, it ought to make an “interim lodging” pending a closing resolution.

An worker who can’t carry out the important features of the job as a result of she rejected an inexpensive lodging provided by the employer after the interactive course of is not going to be “certified” underneath the PWFA.

After all, retaliation, harassment, and “coercion” (interference) are additionally prohibited, and this is applicable to all staff, not simply staff with pregnancy-related situations.

Good appendix!

The proposed laws even have an Interpretive Steering Appendix that comprises useful examples and extra detailed data.