Question

I saw a notice that the EEOC (US Equal Employment Opportunity Commission) issued regulations related to the federal Pregnant Workers Fairness Act that took effect last  year.  What does this mean for employers?

Answer  

Let’s first review the laws already in place that affect Massachusetts employers.

Massachusetts enacted its own Pregnant Workers Fairness Act (PWFA), which became effective in 2018.  The Massachusetts PWFA prohibits employment discrimination on the basis of pregnancy and pregnancy-related conditions, such as lactation, or the need to express breast milk for a nursing child.

The federal PWFA went into effect on June 27, 2023. Many provisions of the federal law were similar to the state law, but Massachusetts law generally offers greater protection for employees in that it:

• prohibits an employer from requiring documentation of an employee’s need for several types of accommodations: 1) more frequent restroom, food or water breaks; 2) seating; 3) limits on lifting no more than 20 pounds; and 4) private, non-bathroom space for expressing breast milk.
• does not limit lactation accommodations to the child’s first year as the federal law does.
• applies to employers of six or more employees, rather than the 15-employee threshold of the federal law.

Both laws require employers to consider requests for accommodation by employees related to pregnancy, childbirth, and related medical conditions.  The Massachusetts Commission Against Discrimination enforces the Massachusetts PWFA, and the Equal Employment Opportunity Commission enforces the federal law.

Federal agencies get their authority to issue regulations from laws that are passed by Congress.  When a new law like the PWFA is enacted, Congress specifically grants the power to promulgate regulations to the agency charged with enforcement of the law, in this case the EEOC.  Agencies may not exceed the statutory authority they are granted, so these regulations do not expand the rights given to employees under the PWFA.  Rather, they provide guidance for how the EEOC will interpret the law.

Some of the provisions in the regulations close the gap between the federal and Massachusetts PWFAs. Others appear to give the federal PWFA greater benefit to employers than the Massachusetts PWFA.  The regulations will go into effect June 18, 2024.

Covered conditions

The new federal regulations have caught the attention of the public for their broad definition of “pregnancy, childbirth or related medical conditions.”  This includes the following (non-exhaustive) list:

• current, past and potential pregnancy;
• infertility and fertility treatment;
• contraceptive use;
• pregnancy termination, including miscarriage, stillbirth and abortion;
• pregnancy-related illness, including nausea, edema, preeclampsia, carpal tunnel syndrome, and more;
• lactation and issues related to lactation; and
• menstruation.

The inclusion of abortion in this list is sure to be the subject of legal challenges.  The EEOC makes clear in the introduction to the regulations that it will consider discrimination claims against religious organizations on a case-by-case basis and does not require employers to provide health insurance benefits for abortion.

Accommodations

The PWFA requires employers to consider requests for accommodations using an interactive process similar to that required by the Americans with Disabilities Act (ADA), but it is clear that the definition of the “qualified” applicant or employee is greatly expanded.  The ADA defines a qualified individual as one who can perform the essential functions of a job with or without accommodation.

But the PWFA also includes those who cannot perform certain essential functions temporarily, which can mean up to 40 weeks (the average length of full-term pregnancy).  Therefore, employers may be required to relieve a pregnant employee of one or more essential functions of the job for the duration of the pregnancy.  This element of the federal PWFA also goes beyond the requirements of the Massachusetts PWFA, which does not explicitly require an employer to restructure a job to this extent.

Another departure from the ADA’s requirements is that a limitation caused by pregnancy or a related condition does not have to be quite as limiting for PWFA protection to apply.   Employers must consider accommodation requests for a “known limitation” of the employee related to pregnancy.

“Limitation” is defined as follows: the physical or mental condition is an impediment or problem, including limitations that are:

• modest, minor, or episodic;
• a need or a problem related to maintaining the health of the employee or the pregnancy; or
• the employee is seeking health care related to pregnancy, childbirth, or a related medical condition itself.

The PWFA definition of a limitation includes routine prenatal care and precautions recommended by a medical provider for the health of the individual and the pregnancy.

The regulations also provide a non-exhaustive list of possible accommodations.  Except for job restructuring, the accommodations are those which would likely be covered by the Massachusetts PWFA.  Some examples are schedule changes, part time or remote work, frequent breaks, light duty, allowing seating or standing, and modifying equipment, uniforms, or devices.

Limits on documentation

The regulations include a requirement that any request by an employer for an employee to obtain supporting medical documentation for the need for an accommodation must be “reasonable under the circumstances.”  This contrasts with the ADA, for which the employer may always require medical documentation.  The regulations list certain accommodations for which a documentation request is not reasonable, and an employee’s attestation to the need for accommodation is sufficient. The list of accommodations for which a documentation request is not reasonable is similar to those for which the Massachusetts PWFA prohibits an employer from requiring documentation:

• Allowing an employee to carry or keep water near and drink, as needed;.
• 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;
• Allowing an employee to take breaks to eat and drink, as needed;
• Providing lactation accommodations;
• An accommodation for which the employer has already has sufficient information; and
• An accommodation that is already made available to employees through its policies and practices without a request for supporting documentation.

The “reasonableness” standard will be challenging for employers to follow, but this list of accommodations for which a documentation request is not reasonable closely follows Massachusetts law.

Denying accommodation requests

Finally, the regulations adopt the “undue hardship” standard of the ADA, but the following factors will be considered when determining whether a request to remove an essential job function constitutes an undue hardship:

• The length of time the employee cannot perform the essential function;
• Whether the employer has work that the employee or applicant can do when the essential function is removed;
• The nature of the essential function, including the frequency with which it is performed;
• Whether the employer has provided employees in similar roles with an accommodation that removes an essential function;
• The employer’s ability to assign others to perform the essential function that is being temporarily removed from the employee’s job; and
• Whether the essential function is one that can be removed from the role and not be performed, and for how long.

Review your policies to be certain that they do not run afoul of the PWFA. You may, for example,  have language in your handbook indicating that employees will be required to provide documentation when requesting any pregnancy accommodation except for one of the four accommodations for which the Massachusetts PWFA prohibits employers from asking.  In that case, the policy can be revised to indicate that the employer will not require documentation for those four situations, nor will it require documentation unless it is reasonable to do so.

AIM members with questions about pregnancy accommodations or any other human resources matter may call the AIM Helpline at 800-470-6277.