Welcome back to our three-part series exploring the EEOC's final PWFA rules. In Part One, we examined the regulatory landscape as it existed before enacting the PWFA amendments to Title VII and why the PWFA was passed. In Part Two, we will explore the definitions provided in the final rules and discuss how they will impact your compliance efforts.
The PWFA Regulations are all about the Definitions
Poet and lawyer Archibald Macleish once stated, "The business of the law is to make sense of the confusion of what we call human life—to reduce it to order but at the same time to give it possibility, scope, even dignity." Definitions provide order and structure and define the scope of an agency's authority within any regulatory framework. To understand the impact the PWFA will have on employers, it is critical to understand the definitional mechanics of the statute outlined in the final rules.
The EEOC made it clear in its comments that the agency relied heavily on Title VII and ADA precedent to ensure its application of the PWFA would be consistent with those decisions. In that vein, the EEOC drew heavily from prior reported decisions while addressing positive and negative comments received during the public comment period. Thus, it is clear that whether an individual has a condition covered by the PWFA and how an employer is expected to address pregnancy-related limitations will be guided by current Title VII and ADA definitions and interpretations.
Let's look at the most impactful definitions covered by the final rules.
Known Limitation
Since the heart of the PWFA is addressing pregnancy-related limitations, how limitations are defined is important. The final rules provide a two-part definition, splitting the terms "known" and "limitation." First, the limitation must have been communicated to the employer somehow. That communication can come from the affected employee or another and does not require any magic language or terms of art. Second, "limitation" could be a physical or mental condition, but it must be "related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Limitations can be modest or minor and/or episodic. It could be a need or problem related to maintaining the employee's health or the pregnancy or simply seeking health care related to the pregnancy, childbirth, or related medical condition.
Pregnancy / Childbirth / "Related Medical Conditions"
The definitions of "pregnancy" and "childbirth" cover what one would expect, such as current pregnancy, labor, and childbirth. However, the EEOC's comments in the final rule clarify that both past and potential or intended pregnancies are covered. This means that coverage now clearly includes fertility and infertility treatments, contraception, and abortion. Given the EEOC's position on these topics under the PDA, one would expect the inclusion of these categories. The EEOC's position, especially on contraception and abortion, has resulted in backlash, and it remains to be seen how these hot-button issues will impact the statute and compliance efforts in the long run.
The phrase "related medical conditions" is granted an expansive definition in the final rules. "Related medical conditions" are defined as medical conditions relating to the pregnancy or childbirth "of the specific employee seeking an accommodation." (Sorry, dads. The PWFA doesn't cover us.) Related medical conditions can include post-termination complications arising from miscarriage, abortion, stillbirth, and postpartum complications like anxiety, depression, menstruation, and lactation. The EEOC has provided a non-exhaustive list of conditions that it believes can be related to pregnancy or childbirth in the final rules.
Qualified Employees
Exercise care when evaluating accommodation requests under the PWFA, as the EEOC's final rules establish that the agency has departed from the ADA framework with which we are familiar. Under the ADA and the PWFA, an employee is "qualified" for a position if the employee can perform the essential functions of the position with or without accommodation. This concept is not new, as we have become familiar with it under the ADA. The PWFA, however, provides an alternative definition for "qualified employee" that allows employees to seek a temporary suspension of an essential job function if the employee can or will be able to perform the suspended duties in the near future.
What do the words "temporary" and "near future" mean? Unfortunately, the final rule is unclear, generating compliance nightmares for employers. "Temporary" is defined as "lasting for a limited time, not permanent, and may extend beyond 'in the near future.'" Further, "in the near future" is "generally forty weeks from the start of the temporary suspension of an essential function." This 40-week period applies to accommodations related to a current pregnancy, which is the typical length of a full-term pregnancy.
The EEOC declined to provide any context for how the phrase "in the near future" may impact childbirth or related medical conditions. Instead, the EEOC noted that these issues should be decided case-by-case. The only hard guidance the EEOC offered here was that "in the near future" does not mean indefinitely. The EEOC also clarified that employers should consider whether an employee can perform the essential functions "in the near future" each time an employee seeks an accommodation requiring suspension of an essential function.
Many of the remaining terms, including "essential function," "reasonable accommodation," "undue hardship," and "interactive process," were lifted directly from the ADA. While there are PWFA tweaks that employers must be aware of regarding accommodating pregnancy-related limitations, most adjustments should be easy to implement if the employer already has effective ADA-compliant policies.
Stay tuned for Part Three of this series on Friday, May 3, 2024, where I will examine the accommodation process outlined in the final rules and provide compliance recommendations you can implement as you adjust to the PWFA's new regulatory framework.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.