Key Takeaways from the EEOC's New Pregnancy Accommodation Rule

Host: Hello, and welcome to Prevention and Protection, the United Educators Risk Management Podcast. Today Hillary Pettegrew, UE Senior Risk Management Counsel, and Lisa Brown with the Thompson & Horton Law Firm will discuss the EEOC’s final rule implementing the Pregnant Workers Fairness Act. Before we begin, a quick reminder to listeners that you can find other UE podcasts as well as UE risk management resources on our website, www.ue.org. Our podcasts are also available on Apple Podcasts and Spotify. Now here’s Hillary. 

Hillary Pettegrew: Thank you, and welcome to our listeners. I’m Hillary Pettegrew, Senior Risk Management Counsel here at UE, and I’m happy to introduce our guest speaker, Lisa Brown, a partner with Thompson & Horton in Houston, Texas. Lisa and I did a podcast last year on the Pregnant Workers Fairness Act, often abbreviated as the PWFA, although today we’ll generally call it the Fairness Act. Lisa, thank you so much for coming back. And we really appreciate having another chance to take advantage of your knowledge and expertise in this area. 

Lisa Brown: Thank you, Hillary. When we spoke last year about passage of the Pregnant Workers Fairness Act, I mentioned that even without this new law, pregnancy-related litigation had actually been on the rise during the preceding five years. So with the release of the EEOC’s final rule on this law and the EEOC stating that this law is a strategic enforcement priority, it’s a critical time for educational institutions to enhance their procedures and train all supervisors. This rule actually came out the same day as the new Title IX rule, and it’s important that we properly implement both sets of rules. And I should note when I say EEOC, I’m referring to the Equal Employment Opportunity Commission. 

Pettegrew: Those are excellent points, Lisa. Thanks. So the final rule implementing the Fairness Act was published April 19 and will be effective June 18, 2024. And since the Fairness Act was passed in December 2022 and became effective in June 2023, we hope that most schools and colleges have already made the major changes necessary for compliance. The law applies to most employers with 15 or more employees, which would cover most K-12 schools and higher education institutions. We covered the basics of the Fairness Act in our 2023 podcast, as well as in a UE Insights article. And both of those are linked on the landing page for this podcast, along with a link to the final rule in the Federal Register. In today’s podcast, we’ll be highlighting key changes for schools and colleges and discussing some best practices for compliance and risk reduction. Lisa, could we briefly review what the Fairness Act requires? 

Brown: Sure. The law requires educational institutions and other employers to provide reasonable accommodations for, “known limitations” related to pregnancy, childbirth, and related medical conditions, unless providing the accommodation would create an undue hardship for the employer. Under this new law, it does not matter if the condition or limitation constitutes a disability as we understand that term under the Americans with Disabilities Act or the ADA. The Fairness Act is broadly focused on impediments and problems, even if they’re minor or episodic. An institution’s obligation to respond occurs when the employee — or perhaps their representative — tells a supervisor or manager that they have a limitation, no magic words required. As a reminder, the Fairness Act covers only accommodations. Other federal laws, primarily the Pregnancy Discrimination Act and the ADA, they address unlawful discrimination and harassment on the basis of pregnancy and disabilities related to pregnancy. Employers have to comply with all of these federal laws in addition to any relevant state or local laws. 

Pettegrew: What are some examples of related medical conditions? 

Brown: Well, this is not an exhaustive list, but the final rule makes clear that in addition to covering pregnancy and childbirth, employers also must accommodate: 

• Infertility treatments 
• Miscarriage 
• Abortion, primarily time off for an abortion, whether it’s travel or recovery, but it would not include the cost of the procedure or the cost of travel 
• Menstruation  
• Even problems relating to use of contraceptives 

The conditions could be physical, such as high blood pressure or frequent urination, but also could relate to mental health or the physical aspects of the work environment, such as not fitting into a required uniform. 

Pettegrew: As a refresher, how does the accommodation process under the Fairness Act work? 

Brown: The general framework is actually borrowed from the ADA’s interactive process. An employee tells their employer they have a condition and need an adjustment at work because of it, and then the parties discuss possible accommodations. It could be something relatively minor like allowing the employee to have more bathroom breaks or time off for appointments, or it might involve restrictions on lifting, walking, or standing. More significant restrictions could include, say, a change in work hours, a light-duty reassignment, or even a request to work from home while on bed rest. 

Pettegrew: While the Fairness Act borrows some terminology and the interactive process concept from the ADA, could you describe the important differences between the two laws? 

Brown: Yes, and although there definitely are similarities, I think it is a myth to say that following your regular ADA process and using your regular ADA forms will comply with the Fairness Act.  

First, as I mentioned, the Fairness Act, it covers more than just disabilities.  

And second, the new EEOC rule de-emphasizes the need for documentation and even identifies accommodations that are presumptively reasonable. 

Third, the Fairness Act sometimes requires the employer to set aside essential job functions, something the ADA never requires.  

So I’ll dive a little bit deeper into these differences. 

First, the scope and language of the Fairness Act are broader than the ADA, so we’re not just accommodating disabilities that affect a major life function. We are accommodating limitations, conditions, and even problems that are, “modest, minor, or episodic.” In addition, in those instances in which both the ADA and the Fairness Act might apply, because you may have a pregnant employee who also has a disability caused by their pregnancy, the interpretive guidance to the new EEOC rule states that you should start your analysis with the Fairness Act and then apply the rules that cause the least burden to the employee. And the interpretive guidance, which is much longer than the rule, it’s found in Appendix A right behind the rule, which you’ve linked to this podcast. 

Second, the new rule does not allow the employer to request supporting documentation unless it is “reasonable under the circumstances.” And the EEOC has identified certain situations where it is obvious that the employee has a limitation and needs an accommodation. And in that situation, a new rule called self-confirmation will allow the employee to confirm in any manner, could be oral, that they have a covered condition and that they need a workplace adjustment.  

And lastly, the Fairness Act protects an employee even if they’re unable to perform one or more essential functions of the job, which is not the case under the ADA. The new rule states that a college or school may need to set aside an essential function as long as the limitation is: 

1. Temporary
2. The employee could perform the essential functions in the near future.
3. The inability to perform the essential function can be reasonably accommodated.

The Fairness Act doesn’t define these terms, but the new rule does state that with respect to pregnancy in particular, the ability to work “in the near future” generally means 40 weeks from the date that the job function is suspended. The rule identifies some factors to be considered, and each situation will require an individualized assessment.  

The definition of undue hardship also is the same as the definition under the ADA, and that would be a significant difficulty or expense, which takes into consideration the financial realities of the institution — but it is not limited to financial difficulty. There are multiple elements at play here such as the size and staffing levels of a school or the institution and the length of time that the employee will be unable to perform that job function. 

So no single factor actually is determinative. We have to look at all the factors. For example, let’s say you have a very small police department and a pregnant employee needs to be relieved of patrol duty. If the department is already shorthanded because several other officers are already on leave for whatever reason, then it would be relevant that we’re already shorthanded. But you would want to look further. How long does the pregnant employee need to be relieved of this duty, a couple of weeks or three months? And when do these other employees come back? Because that might help us figure out an accommodation. 

Pettegrew: So in light of all this, Lisa, what’s the most important thing K-12 schools and higher education institutions need to know about complying with the Fairness Act? 

Brown: I would have to say my best advice is training for frontline managers because these are the people who will receive most of the requests for accommodation, or the direct requests for accommodation. And frontline managers really must understand that they have an important responsibility under the Fairness Act. The interactive process under this law is intended to be informal and prompt, and in many cases, there’s just no need for documentation. There’s no need to call up HR and to wait. The accommodation may be obvious. The individual needs to carry a water bottle where usually we don’t have water, or they need to sit when they usually stand. There shouldn’t be delay in accommodating those types of requests. The new rule, in fact, expresses concern about delays unnecessarily caused by routing a request through HR or asking for medical documentation that you shouldn’t be asking for. And so I think part of the training is making sure that the frontline managers know which accommodations generally will be considered obvious or predictable, and how to document that they, in fact, provided the accommodation. 

I think frontline managers also need to be aware of restrictions on disability-related inquiries and the rules regarding confidentiality. These are very similar to the ADA and, according to the EEOC, the fact that the employee is pregnant or perhaps was recently pregnant or currently is receiving some type of accommodation, all of these are confidential. And so you can’t have a manager at a staff meeting explaining why a particular employee’s schedule was changed. I think frontline managers, another part of the training piece is helping them understand what they can say, what they shouldn’t say during the interactive process, whether it’s a conversation on the phone, in person, or whether it’s an email with the employee who’s making the request. 

The other thing I would want them to know is, and this would be true for frontline managers but also HR as well, under this particular law, when evaluating whether the employee will be able to perform her essential job functions in the near future, they’re going to have to treat the pregnancy phase and the post-pregnancy phase separately. If a pregnant employee’s essential job function is suspended, say for the last several months of the pregnancy, and then she gives birth, goes on leave, and then comes back but needs some other type of temporary suspension of an essential function, the calculation of whether she’s able to return in the near future, it’s going to start fresh. 

Pettegrew: Do you expect to see this area generating potential liability under the Fairness Act? 

Brown: Yes. I think we can anticipate an increase in liability in these types of cases. And I think that’s what the EEOC also is saying, and we’re probably going to see it more frequently, where a manager has denied a straightforward request such as a classroom teacher needing more frequent bathroom breaks, or an employee asking for a rolling cart to carry things, or maybe asking for a stool when usually that particular worker stands.  

In fact, the EEOC has stated that any unnecessary delay in granting a pregnant employee a requested accommodation can actually violate the Fairness Act — even if the request is ultimately granted. And I’ll just briefly note with respect to what would seem to be a simple example of bathroom breaks: during passage of this bill, there were examples of women being told, “No, you can’t leave the classroom right now.” And they ended up with bladder issues because they weren’t allowed to go to the bathroom.  

So the idea of a delay being minor, we just don’t know how it might impact that person. So there’s also a potential liability if the manager asks for medical documentation not allowed by the rule. I think that part is a “must read” for anyone implementing this law. And it may be the manager’s mistake in denying a request or asking for improper documentation, but it’s ultimately the institution that’s going to be on the hook. And certainly there will be accommodation requests under the Fairness Act where HR has to be consulted, a work from home request or a request that involves the interplay of the Fairness Act, the ADA, and even throw in the Family and Medical Leave Act. 

So when training managers, I definitely recommend using hypothetical real-life situations designed to show them the difference between sort of the routine requests — easy to grant and understand — vs. the more complex requests where we do need to involve HR. Thankfully, the interpretive guidance to the new rule provides many scenarios that can be used in training. And with training, I think we will see better compliance, and also it could limit damages if a violation is found. Under the law, when there is a violation, an institution potentially can avoid money damages if it can demonstrate a good faith effort at the interactive process. 

Pettegrew: Now, notably, there’s no specific exemption in the final rule for religious institutions. How should those schools respond if they’re accused of violating the Fairness Act, for example, by refusing to allow an employee recovery time after an abortion? 

Brown: There is no automatic exemption. That’s correct. The EEOC has stated that disputes over required accommodations at religious institutions will be handled on a case-by-case basis, and they’ve advised these institutions to raise these types of issues with the EEOC as early as possible in the process. 

Pettegrew: Now, all that being said, we’ve already seen several legal challenges to the Fairness Act and the EEOC’s rule. Could you briefly summarize those? 

Brown: Yes. We have seen litigation already, and the first one was the state of Texas filing suit based on procedural objections over how Congress even passed this particular law. In February 2024, a federal district court enjoined enforcement of the law against Texas and its agencies, which would include state universities. The injunction does not affect other public entities in Texas or private institutions. The federal government has appealed the injunction in that case.  

And then in April 2024, the Republican attorneys general of 17 states sued the EEOC, alleging that requiring employers to provide workplace accommodations related to abortion is unconstitutional. And so as of early May 2024, it’s a waiting game to see how these lawsuits are going to play out.  

The fact is, for the vast majority of institutions throughout the country, the EEOC’s final rule will be effective on June 18. So proceeding with compliance is the recommended course. And, if in doubt in your jurisdiction, institutions should consult their local counsel. 

Pettegrew: Before we wrap up, as Lisa mentioned, coincidentally or not, the Department of Education released the long-awaited final Title IX regulations on the same day the EEOC published these final Fairness Act regulations. The Title IX regulations become effective Aug. 1 and make clear that schools covered by Title IX must protect students, employees, and applicants from discrimination based on pregnancy, childbirth, termination of pregnancy, lactation, related medical conditions, or recovery.  

UE is addressing the Title IX regulations separately. Although the pregnancy provisions of Title IX overlap protections provided by the Fairness Act and the Pregnancy Discrimination Act, it’s important for schools and colleges to understand the separate sets of pregnancy-related requirements imposed by Title IX and the Fairness Act. So you should really ensure that you review your policies and procedures and revise them appropriately and that you have proper practices in place, including the necessary training. Lisa, do you want to add anything else? 

Brown: Yes, I do have actually one practical suggestion. With the release of the pregnancy accommodation rules under both Title IX and the Fairness Act, I think institutions may want to consider designating one or more employees as deputy Title IX coordinators who will focus on pregnancy-related issues. I’m finding with the schools and colleges that I work with that these deputies are developing an expertise, and it’s really been helpful in assisting students and employees with accommodation issues. 

Pettegrew: Thanks very much, Lisa. That concludes our podcast today, and thank you again to our audience for participating. 

Host: From United Educators Insurance, this is the Prevention and Protection Podcast. For additional episodes and other risk management resources, please visit our website at www.ue.org.