Understanding the New Pregnant Workers’ Fairness Act

Effective June 7, 2023 employers must comply with the Pregnant Workers’ Fairness Act, which imposes new requirements on the way employers accommodate the needs of pregnant workers unless doing so would cause “undue hardship.”  Sheri Olyuemi and Betsy Dorminey explained how this new legislation affects employers, what steps must be taken to comply, and what pitfalls to avoid.

Watch This Webinar

Chapters

• 00:00 Introduction to the Pregnant Workers Fairness Act
• 07:40 What is Covered by the PWFA
• 28:23 US District Court Decision on the PWFA and Potential Challenges
• 38:26 Importance of Training Frontline Supervisors for PWFA Accommodation Requests
• 50:13 Determining the Duration of Leave under the PWFA
• 56:14 Staying Updated on the Implementation of the PWFA

Webinar Transcript

Sheri Oluyemi (00:00):
Thank you for joining us, Betsy kick us off.

Elizabeth K. Dorminey (00:02):
Okay, that's great. Good, good noon. I guess everybody, since it's not afternoon until in a minute. But anyway my name's Betsy Dorminey. I'm a partner at Wimber Land Lawson, and with me is my excellent and esteemed colleague Sheri Oluyemi who's of council to us. And our mission today is to go over the Pregnant Workers Fairness Act, which is fairly recent litigation. And it's, it's, it was enacted in 22, I believe. And usually there's a bit of a transition period, and we've worked through that, and it's still in early days, but it's, there's been enough experience with it that we thought it would be interesting to discuss some of the particular ramifications of this law, how it fits in with other laws like the Americans with Disabilities Act and the Family Medical Leave Act. And some limited but real experience that some of our clients have had with adapting to its new requirements so far. So I'm going to pass the baton to Ms. Sherr, who will give a little bit of an outline about the ACT and its requirements.

Sheri Oluyemi (01:16):
Thank you, Betsy. Again, welcome everyone. Like Betsy said, this act was enacted in December 29th, 2022. It became effective in June 2nd, 2023. Some of you may have joined us for our webinar at that time, where we just brought you the news that this is new law and it is, has become effective. The EOC has began to accept charges on this new law, and now it's had some time, like Betsy said, to settle in. So we'd like to talk to you a little bit more about is details. Some of you may already know the Pregnant Workers' Fairness Act, amended Title vii, which is the federal statute that protects against discrimination, harassment, and retaliation on the basis of sex, which included pregnancy Title vii, also includes the Pregnancy Discrimination Act, which amended it several years ago. So the Pregnancy Fairness Act, I'm just gonna say Pregnant Workers Fairness Act.

Sheri Oluyemi (02:17):
I'm gonna say PWFA, so I don't have to keep saying that. Mouthful. The PWFA has now amended Title VII again to include more protections for pregnant workers. The PWFA is similar to several acts that exist already in the United States. By my last count, there are 30 states that already have a statewide PWFA. And so the federal government leaned a little bit on those existing laws in creating this new one. Another thing that is helpful for a lot of our clients, we've noted that the PWFA relies on definitions from the Americans with Disabilities Act. And since we've all been familiar with the A DA for a long time now it's been easier to transition the requirements of the PWFA into our workplaces and our clients' workplaces, because it relies on a lot of the same definitions from the a DA and I'll delve into that in a little bit more detail.

Sheri Oluyemi (03:22):
All right, so let's get into that detail now. Who's covered? So, just like Title vii, in order for an employer to be a covered entity, it must have more than 15 employees, and this includes government. So any entity that has more than 15 employees in the United States is covered by the PWFA and who's covered on the employee side. Well, same as Title vii, it covers an employee as well as an applicant. It does not include bonafide contractors, and I say bonafide contractors to distinguish from situations where employers misclassify an employee as a contractor for various reasons, including avoiding liability under laws like the new pregnancy Act. It would exclude bonafide contractors. So even in a misclassification case, the courts and the EOC can look to see whether the employees misclassified as a contractor and still apply the law to that individual.

Sheri Oluyemi (04:23):
So only the bonafide contractors are excluded. And within that group of employees and applicants the individual has to be a qualified employee. Again, this is a term that you will recognize from the A DA because a qualified employee is someone who can receive an accommodation under the a DA. This means that this person is able to perform their job functions with or without a reasonable accommodation. So same thing with the PWFA. You must be a qualified employee in order to have this protection. Betsy and I were remarking earlier that the ACT doesn't mention women or, or men or any other gender. It just uses the terms employee, applicant individuals, persons, you must fit the definition of a qualified employee, so one who can perform their job functions with or without a reasonable accommodation. Again, Sheri,

Elizabeth K. Dorminey (05:21):
Let me ask you a little question there, just for clarification. What about the notion of qualified employee under the Family Medical Leave Act? Because in the FMLA, of course, to be qualified for those benefits, you have to have been employed for more than a year and or 1,250 hours. Is there any similar requirement under the PWFA?

Sheri Oluyemi (05:44):
Nope, absolutely not. So the definition of qualified employee tracks exactly with Title vii, not with the FMLA. So there is no minimum requirement of time that employee needs to be employed or a minimum number of hours that an employee needs to work. And I think a, a good way for people to think about this is the federal government wanted to fill some gaps that the FMLA left open. I'm sure a lot of our clients on this call already use the FMLA to accommodate pregnant workers, but if that employee does not have the tenure of a year or the amount of hours, they wouldn't qualify. So no, that's not a requirement here.

Elizabeth K. Dorminey (06:25):
Well, I suppose that makes sense since they speak in terms of applicants too, because obviously an applicant is not someone with a, with any kind of tenure.

Sheri Oluyemi (06:33):
Exactly. Exactly. Another little nuance to, to be aware of here, because we're talking about pregnancy, the definition of qualified employee specifically contemplates that this individual would not be able to perform essential functions of their job for a temporary period. I don't know if any of you have have dealt with disability cases where the disability was transient, which is the term that the courts use. If it is transient, perhaps it's not a disability, it's, it may be too minor, it may be too brief for that employee to be accommodated under the a DA. The Pregnancy Workers' Fairness Act specifically includes an inability to perform an essential function for a temporary period. Pregnancy is only for nine months. So the anticipation is that it's not going to be a condition that lasts for a long time. So prepare to receive those requests for accommodations for even temporary or transient medical conditions.

Sheri Oluyemi (07:33):
All right. So what is covered if this employee is qualified, if the employer is a covered employer, what is covered? Covered? the ACT includes what is called a known limitation, and this means a physical or mental condition that is related to, affected by or arising out of pregnancy, childbirth, or any related medical conditions that the employee has actually communicated with the employer. And whether or not it meets the definition of disability under the a DA, it is covered. So just to recap, it has to be a known limitation. The employee must communicate it. Again, there's nothing new, right, Betsy, because this is what you need for the A DA,

Elizabeth K. Dorminey (08:12):
Right? Although it didn't, I think that there are some distinctions there about whether, how, how readily ascertainable the limitation is, right? Because, you know, some pregnancy limitations can arise morning sickness for an example before anybody would necessarily know that the, that the employee is pregnant. And that may be the kind of things that triggers coverage, but is not going to be as easily determined as something like, you know a physical impairment under the a DA that. And again, some of those are obvious and some aren't. So there's a, we were talking earlier in our kind of warmup session about this of, of whether there's a requirement that you have a doctor's note the documents that you are in fact pregnant. And Sheri, you do wanna elaborate on that? Well,

Sheri Oluyemi (09:05):
According to the EOCs guidelines and their summary of the PWFA, it's not always, it's not always the employer's right to demand a doctor's note for an employee to be accommodated under the Pregnancy Workers' Fairness Act, according to the EEOC. If the impediment or the limitation is obvious, and the employee's unable to provide a note for whatever reason, the employer cannot throw up their hands and say, well, I haven't seen a doctor's note. And as such, we don't move to the interactive process phase. DEOC believes that if the impediment is obvious, then the employer still has a duty to attempt the accommodation even without a doctor's note, which, again, like you said, some a DA cases are, are like that, where you, you can argue that it's obvious, but I think the majority of a DA cases will say the employer is okay to say, I never saw a doctor's note telling me what limitations exist. And as such, I can't just pull accommodations out of a hat. So we believe that when these cases will start to go through the courts, a test should arise <laugh> for when the employer is able to demand a doctor's note versus when the employer may have to just rely on the employee's representations.

Elizabeth K. Dorminey (10:19):
That raises another interesting thing too, though, Sheri, where the what, what kind of accommodations are required and how you, how you determine that? Because let's say, for example, in a typical a DA type case if someone comes and says, you know, I have a disability and, and I need accommodations, frequently, an employer will have a piece of paper that they've generated with the essential requirements of whatever job that employee has and say, you know standing, walking, lifting more than 40 pounds, something like that. And they will give the employee that piece of paper to take to their doctor, so their doctor can come back and say, well, you know, the limitation of, you know, not lifting more than five pounds or something like that until we reevaluate in three months or something like that. I would think, and perhaps you've gotten an opinion on this, that in the, the pregnancy limitations may not be something that the physician needs to certify as much as the individual requires because of what their condition are may be, perhaps

Sheri Oluyemi (11:28):
That's why the ACT did not address that. We were also contrasting it with the FMLA where there is a certification form. If you use the Department of Labor's forms, the physician fills it out, you attach the job description, or you write in the essential functions. The A DA does not have that requirement, and the Pregnancy Workers' Fairness Act does not have that requirement. So we believe that this, this test may develop from case law but for now, there is no bright line test as to when the employee can self-certify or when a physician is, is needed.

Elizabeth K. Dorminey (12:02):
Well, and that's, that's also, oh goodness, I was on the tip of my tip of my tongue when you said something interesting there. The the interactive process does however, remain a, a part of the PWFA, doesn't it?

Sheri Oluyemi (12:16):
It does. And that was my next subsection here. What does an employer to do? So the employer, once they receive this request, is communicated as required by the act. Whether it has a doctor's note or not remains to be seen, but it has been communicated to the employer. The employer's next step is to engage in the interactive process, which is the process by which the two sides try to determine an accommodation that is reasonable for the employee to allow 'em to stay at work, and is also not an undue hardship for the employer. So the employer has some options in that process. They can either accept the reasonable accommodation that the employee has requested, or they can offer a reasonable alternative. Again, just like the a DA, the employer is not required to accept whatever the employee asks for. If they can provide a, a reasonable, equally effective alternative. And I would argue that on an operation practical side of things, the employer should be actively doing that. If the accommodation requested is, is, is onerous but not quite an undue hardship, I would recommend that you, you offer a reasonable alternative because that's the best defense to any claim that the employer did not engage in the interactive process.

Elizabeth K. Dorminey (13:32):
Okay. 

Sheri Oluyemi (13:33):
So what is a reasonable accommodation? The act literally says it is the same definition in the a DA. So I know that all of our attendees have had some experience with coming up with reasonable accommodations under the a DA. It is very much the same process, and Betsy and I were remarking on how pregnancy symptoms vary greatly from hair loss all the way to, you know, just needing to sit down or going to the bathroom more frequently. The, the symptoms can be so wide, so varied between pregnant women individuals such that you, you cannot predetermine what the reasonable accommodation will be. You would need to sit down with your employee, look at your operations and determine what is an accommodation that is appropriate that is not an undue hardship. Same thing with undue hardship. The act literally says it is the same definition as the a DA, so all of you already have experience with that is a higher threshold than the reasonable accommodation for a religious a religious practice. Although with that new case, the United States Postal Workers case, that that standard has been elevated a a a little bit. But for the Pregnancy Work Experiments Act under hardship is defined the same way as the a DA. So you would be able to apply your existing metrics for determining what's too much for your operations to bear.

Elizabeth K. Dorminey (15:01):
Can putting an employee on leave be an accommodation?

Sheri Oluyemi (15:04):
It would, absolutely. So two things that I, I noted here that's a little different from the A DA one. It specifically states that expect this to be temporary. So if someone's asking for an accommodation because of pregnancy, the default is that it's temporary. Of course, there are some pregnancy conditions that last longer forever. For example, if you, if you develop high blood pressure during pregnancy, you may never be able to get it back to normal, whereas some other people develop it during pregnancy and it goes away as soon as the baby's born. So the expectation is it's going to be temporary. Another different thing that we noted is the ACT specifically says a reasonable accommodation would be to allow the employee time off to attend healthcare appointments. This is something you recognize from the FMLA intermittent leave because it's, it's part, it's baked into the FMLA, it's not part of the A DA as much, but some of you may have already granted it as a reasonable accommodation.

Sheri Oluyemi (16:05):
So the Pregnancy Workers' Fairness Act specifically calls that out. It can be temporary, it can be allowing the employee to take leave. It can be allowing the employee to take time off to, to go to the doctor. And again, you have to have that conversation with the employee. A high risk risk pregnancy may have two appointments a week, a low risk pregnancy, I don't know, one a month, I don't know. So you need to sit with the employee and perhaps this is another good case for, well, we need a doctor's note. What are your appointments like? We wanna make sure you're not abusing the program. So we'd like to see what your doctor has required in terms of cadence of your appointments, but the PWFA does specifically contemplate that time off as well as time off for appointments are part of reasonable accommodations.

Elizabeth K. Dorminey (16:54):
We always sound like a broken record, but document, document, document, you know, the, the way to, to answer a charge that you failed to engage in the interactive process is those little notes to the file where you say, I sat down with so and so on such and such a day, and we talked about what, you know, accommodations were, were necessary, what was practical and how we could come out with this. Here again, you know, the more that's in the file, the, the, the, the, the better your defense usually in these situations. So I would urge any interactive process communication to be, to be pretty pretty. It doesn't have to be elaborate, but it doesn't need to be documented in the, in the file. Just so that if it comes up later, then you can, you can say, yes, we did, we did go through this. And also I suspect, although it may not be explicit, that this is another one of the situations where the employee is not necessarily the one with the final word about what accommodation is reasonable or not, and the employer would be the one making that final call after engaging in the process.

Sheri Oluyemi (18:05):
I agree entirely because the standard is the same. The employer is only required to accommodate up to a point of undue hardship. And no one is in a better position to determine what is an undue hardship on the operations than the employer is. So, so yes, I believe ultimately the employer gets to make that determination.

Sheri Oluyemi (18:26):
All right. So this next section here talks about what does the employer need to avoid doing? We talked about what they need to do, engage in the active interactive process, accept the reasonable accommodation requested, or offer a reasonable alternative up to a point of an undue hardship, of course. So what do the employer avoid doing in this case? There is some reliance on other statutes, but the ACT does list five things specifically that are unlawful employment practices. The first one is failure to make a reasonable accommodation to the known limitations related to pregnancy, childbirth, or medical conditions. So failure to make the accommodation when you can do so, when it would not impose an undue hardship on the operations of the business is an unlawful employment practice, just like the a DA secondly, it says it's an unlawful employment practice to require the qualified employee affected by pregnancy childbirth related, related medical conditions to accept an accommodation other than the reasonable one arrived through the interactive process.

Sheri Oluyemi (19:32):
So it's making failure to engage in the interactive process its own basis of an unfairly well practice on its own. With the a DA, there's always been a debate, and I think there might be a circuit split on this as to whether or not the, the employee has a cause of action for just failing for the employer's failure to engage in the interactive process. I think I would argue based on the way this statute is worded, that an employee can probably state a claim just based on the employer's failure to engage in the inter the interactive process. Betsy, do you think I'm reading too much into that?

Elizabeth K. Dorminey (20:08):
Well, I wouldn't be surprised if somebody tried it, and it would be interesting to see how it, how it shook out because if they're going to particularly listed as a prescribed activity, then I think you might certainly be able to make the, make the case that, you know, they wouldn't talk to me about this. They violated the, the statute

Sheri Oluyemi (20:26):
And what it is yet to be seen. Again, although this law became effective in January of 23, these cases have not been litigated. We don't have any decisions of applying these particular provisions. We don't have final regulations yet. But we know that the cases are making their way through the EEOC and those decisions will be coming out shortly.

Elizabeth K. Dorminey (20:50):
Well, but that you raise an interesting point there, Sheri, which is, do you have to go through the EEOC process of exhausting administrative remedies and so forth?

Sheri Oluyemi (20:58):
You do, do, and that, and I will cover in my section, well, I'm

Elizabeth K. Dorminey (21:04):
Okay

Sheri Oluyemi (21:04):
Remedies yes, you're, you're, you're getting ahead of the curve. Okay. But just to answer your question briefly, it is enforced in the same way as Title VII and the a DA, the employee must file a charge and the employee, the EOC, gets to fulfill that gatekeeper function that it has been doing. So to answer your question in advance of my getting to that section, yes. Okay. But there are three other LPs, well unfair employment practices that I should go over. The third one is deny employment or deny employment opportunities to the qualified employee if the denial is based on the need to make a reasonable accommodation. Again, it's discrimination, it's prescribed. Number four, require the qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to pregnancy. You asked earlier as to whether leave is a reasonable accommodation, and my answer was yes, but you cannot require it even if it is paid leave.

Sheri Oluyemi (22:09):
This section, sub four here, says that it is an unlawful employment practice to require the qualified employee to take leave, whether paid or unpaid. If they ask for it, great, but you cannot require it. And fifth and finally, it is an unfair employment practice to take any adverse action in terms of terms, conditions, privileges of employment against a qualified employee on the account of that employee requesting reasonable accommodation. This language is almost verbatim from the a ada A, you cannot retaliate for them requesting or discriminate against the employee for requesting it. There is a separate subsection for retaliation, just like the a DA, it is illegal to discriminate against an employee because they have opposed any act made unlawful by this chapter or because they have filed a charge testified or, or assisted in any way in the investigation of any violations of this chapter. So basically the same thing is Title vii. You have your participation, you have your opposition. If the employee either opposes the act that is illegal or they participate in investigating a, an illegal act, they are protected from retaliation.

Elizabeth K. Dorminey (23:23):
That's interesting that they broke out retaliation as a separate thing then. I think that, that, that's, that's that's an intriguing development here,

Sheri Oluyemi (23:33):
And it sounds duplicative of the last one I read, the sub five take adverse action against a qualified employee for requesting a reasonable accommodation. It sounds duplicative, but they've separated them out. And the standard looks similar, but it is identical to the A DA. It's also unlawful to coerce, intimidate, or interfere with any individual exercise or enjoyment of any right provided by this act. For me, that sounds a lot like the interference claim in the FMLA which some of you may have some experience with. It's a very lower standard for the employee to prevail because there is no intent that needs to be proven once the employee interferes with an FMLA protected, right. The employer is automatically liable even if there was no you know, there was no intent, which you need on in Title vii. So this section here on coercion in the Pregnancy Works Fairness Act, it looks to me like that type of interference claim under the FMLA.

Sheri Oluyemi (24:37):
Again, just my reading, I guess the courts will interpret it for us soon enough. All right, so consequences of these unlawful practices, the same sh fee shifting. So the employee's entitled to recover of their recovery of their attorney fees damages, just like section 1981. They get punitives, they get back pay, and they get compensatory damages, which your pain and suffering, it's virtually the same. Here's something new, a defense that is baked into the act. If the employer can prove good faith efforts were made to identify an accommodation that would limit the damages that the employee is entitled to. So even if the employee prevails, they would have limited recovery if the employee can, employer can show good faith efforts of attempting to accommodate which sounds a lot like the FLSA good faith where the employee would not recover liquidated damages if the employer can show good faith.

Sheri Oluyemi (25:44):
So that defense is, is here baked into the act. Alright, so that 26 minutes or so has taken us through a lot of the nitty gritty of the act, oh, I forgot to mention, of course, enforcement mechanisms, which Betsy touched on earlier. Like I said, it's, it's identical to Title vii. The employee has to file a charge with the EOC. The EOC has the opportunity to mediate the case or investigate it at the end of which issue of notice of Right to Sue or conciliation, depending on how the investigation went. The same administrative exhaustion requirements are necessary. So,

Elizabeth K. Dorminey (26:23):
But that notice of Right to Sue requirement is a very important thing all the way around because the the federal courts already complained about all the employment litigation that they have. But if they, if there weren't the notice of Right to Sue requirement, you can only imagine how much more there might be.

Sheri Oluyemi (26:41):
Absolutely. Absolutely. So we wanted to talk now a little bit about the updates from the time that this act was effective back in June of 23. Like we said, we've looked through case law, we haven't seen cases actually applying the act in, in the workplace, but there have been some decisions. Betsy, do you want to take us through the next

Elizabeth K. Dorminey (27:06):
Section? Well, yes yes. That, that's, that's, that's a very good, that's a very good lead up. An interesting case from the constitutional law angle, and this will remind everyone of their fifth grade civics classes when we talked about how a bill becomes a law and you have to have people in the house and the Senate and they vote and they propose and all those things. Very interesting case called Texas versus Garland, Texas being the state, and Garland being the Attorney General of the United States. Merrick Garland Texas sued claiming that the 2022, I guess probably omnibus spending bill to which the PWFA was attached or included was not enacted in compliance with longstanding custom, if not explicitly rules, something called the Quorum Clause in the House of Representatives, which requires that members be present to vote now in 2022, as none of us will ever be able to forget.

Elizabeth K. Dorminey (28:13):
We had a pandemic in the country. And a lot of very fundamental things like absentee voting and so forth were changed in order to avoid making people come together in public spaces and potentially infect one another with communicable diseases. Now, the the house passed a rule that year that said you could vote by, you know, as an absentee or by proxy on liti on legislation. And the PWFA among other things, was voted on with a substantial number of members either not present or voting remotely or again, by proxy. And Texas challenged this what they alleged was a procedural flaw that rendered the legislation so enacted invalid. And that has had the consequence of producing in February, late February of this year, a US district court decision from Texas saying, the law looks unconstitutional to me. I'm going to enjoin an enforcement.

Elizabeth K. Dorminey (29:28):
And the Texas attorney General who had, who brought the case also argued specifically under the heading of the PWFA, that it's adoption and enforcement would impose a significant burden on the state as the employer, because as Sheri pointed out at the beginning, this law applies to public employers as well as private sector ones. So this is going to be an interesting one to watch. It's just finished. I mean, it's a fairly recent, you know, not much more than a month old decision from a US district court down in Texas. That's one judge. The Attorney General of the United States will almost certainly appeal to the Fifth Circuit, although I looked today and I wasn't able to determine whether an appeal had been filed. But again, we might, you know, might not have shown up on our system yet, even if it's, even if it's been done.

Elizabeth K. Dorminey (30:27):
But we'll see how that goes forward. And it may well percolate its way up to the United States Supreme Court, which is not wanting for business these days with everything that's going on. But I think, I think this is a, this is an interesting case to watch. It's going to affect only Texas at this point, although other states may decide that they want to copycat on when we had the litigation about the COVID vaccines. That was an interesting one because it, it found its way up to the Supreme Court through I think at least three different courts of appeals decisions that were similar in some respects and dissimilar in others. So, you know, these things can, can, can go through an evolution, and in the meantime, the PWFA is enjoined, but only in Texas. So if you're an employer in Texas or if you're the state of Texas you don't need to worry about it.

Elizabeth K. Dorminey (31:28):
But everybody else had probably be well advised to, to co comply with the LAX requirements to the, to the greatest extent possible. It, it was interesting to note that in the decision from the district court, they pointed out that people could still file with the EEOC, but if they, or if they didn't, if they didn't follow the EOC, they, they could be excused with not complying with the notice of Right to Sue because of the Texas injunction. So I, I thought that was kind of an interesting save that they built into their decision. But anyway, we, the, the bottom line on this one is that outside of Texas we'll, we'll see what what comes of this next and see what the Fifth Circuit judges decide to do with it.

Sheri Oluyemi (32:21):
I thought that was odd stating specifically that the EOC can continue to accept charges, but then needs to issue a letter saying, we can't enforce this because it's enjoined here. What's, that's, that's an odd an an odd, but

Elizabeth K. Dorminey (32:34):
The court it is, it is very unusual. And the court is, is also saying, you know, well just tell the judge that, you know, you don't have a notice of right to Sue because of this other stuff and, and you know, they'll basically let it slide and you can go ahead and and, and pursue the case. It's, it's, it's, it's an unusual, it's an unusual portion of the, of the holding, I think.

Sheri Oluyemi (32:55):
Do you think, and we're, we're in Atlanta, Georgia, do you think states like Georgia will, will raise the same challenge?

Elizabeth K. Dorminey (33:01):
I don't know. I mean, it'll be interesting to see. I could see, I could certainly see it happening. This is a law like so many others, it's a much more consequence to the private sector employers than it is to the public sector ones. Right. And if they did, I suspect it would be for honestly political reasons more than anything else in order to you know, make a point about the civics lesson, basically about the rule changes that produced this change in, in voting requirements that that is a bigger issue. And that would be certainly what the Supreme Court will be fo focusing on when it comes before them, because the Supreme Court really doesn't care about anything other than the constitution and it, and, you know, query whether the quorum clause is in there as a hard and fast rule, or if it's a matter of custom, which is something else again. So it'll be, I don't know, a lot of this one will be worth watching for a while.

Sheri Oluyemi (34:07):
I am expecting similar challenges around the country. I feel like politicians always use every opportunity to <laugh> to noise and, and get some airtime. So why wouldn't they try it? But,

Elizabeth K. Dorminey (34:19):
Well, you, you make a very good point there, and we are in a very political year. So <laugh>, just stay tuned.

Sheri Oluyemi (34:26):
Exactly. Stay tuned. We shall keep you updated. Another update, or lack thereof is the issue with regulations. As you probably know the ACT was supposed to have regulations to go along with it, to en enable the enforcement of the act to enable us to comply. The regulations were due to be issued by the EEOC by December of 2023. We are now in April of 2024. Those regulations have not yet been issued. They did issue some proposed regulations back in August or October sorry, in in August, August 11th, 2023, there were proposed rules issued, and there was a comment period that closed at the end of last year, and the proposed rules have not been adopted as final. So,

Elizabeth K. Dorminey (35:19):
Well, how many, how many comments were filed? Sheri <laugh>,

Sheri Oluyemi (35:22):
Oh, I don't have an exact number, but hundreds of thousands of comments were, were submitted. And of course,

Elizabeth K. Dorminey (35:28):
The commenters have figured out this this internet business, and I think they've, they've managed to magnify their impact considerably.

Sheri Oluyemi (35:36):
Well, and if you look through the comments, of course, you know, when you're like me and you're a bit of a nerd, a lot of the comments just have one-liners. It could be anyone just coming up and, and leaving like a a comment on your Facebook page is it seems the way some people just come in and leave a comment. But then there are other more substantial comments from labor groups, law firms industry groups, and they had, you know, various, various takes on the act, changes that they believe, I mean, on the regulations, changes that they believe should be part of the final rules. And maybe that has something to do with the delay in issuing final rules. Just going through all the comments, revising the proposed rules to account for those comments that they found to be helpful. Perhaps that's what's taking so long.

Elizabeth K. Dorminey (36:24):
Well, you will remember that in the, in the in the preparatory statements to any issuance of final regs, they always have a section where they go through in considerable detail all the comments that were received and how many about this and how many about that. And so, you know, that task alone, if they've got a giant box of comments to sift through, is likely going to demand a pretty considerable amount of time.

Sheri Oluyemi (36:49):
Perhaps that's the reason for the delay. For now we only have the act, which is, which is very brief, which, like I said, relies heavily on the a DA and pulls just a teeny tiny bit from the FMLA. The, there was a rule issued recently in February, 2024, simply amending the regulations for Title VII in the 80 DA to include the Pregnancy Workers Fairness Act, so that for the time being, they call it an interim final rule for the time being, we know that it's going to be processed through the EEOC. The way Title VII cases are processed. It's subject to the Privacy Act, the way Title VII cases are subject to FOIA the way Title VII cases are. So they did get those rules out, just procedural rules about how they're going to implement this and how it's going to be in the same stream as all these other similar statutes so that they don't have to develop a whole new set of procedural regulations and record keeping regulations.

Sheri Oluyemi (37:53):
It's all going to be just like Title vii, gina, and all the rest. But we're waiting on those substantive regs and hopefully they'll be here soon. All right, so for the last segment, I just had three bullet points on what to expect, and then Betsy will probably chime in and then we can open the floor to some questions. So what to expect? I was thinking employers may be taken aback by the number of small and temporary requests for accommodations, which are very easy to overlook because they are both small and temporary. However, the PWFA really focuses on these, it tells the employer that you're, these are gonna be temporary. They're gonna be minor. It's gonna be things like needing a stool to work from a seated position. These are things that should not be an undue hardship. And so employers should have a mindset of granting those whenever they can and just keep the operations flowing.

Sheri Oluyemi (38:55):
Employers may be used to a, a bigger rigmarole where there's a reasonable accommodation request where they have a committee and they have doctor's notes and physicians double checking everything. It may not be all of that for the Pregnancy Workers' Fairness Act. It may just be small things that you're frontline supervisors should be knowledgeable, knowledgeable about, because they may be able to even handle it at that level. So I think as usual, we always say this almost in every webinar training is gonna be key. You need to educate your frontline supervisors because they're the ones that are going to hear these requests. They're the ones that are gonna notice that someone is, you know, emptying their stomach every morning, every day, and they're the ones that are going to be the frontline for the interactive process. So they need that training to recognize these small and temporary requests. 

Elizabeth K. Dorminey (39:48):
Well, and too, Sheri, they are, they're the ones who are going to know how a request can reasonably be accommodated. Absolutely. So because they know the, they know the, the, the practicalities of, of the workplace. I do have a, a, a client and major large food processing company, and they have, they have found it not all that difficult actually so far to make these short term simple accommodations. And as you point out, often it's no more complicated than providing a stool to sit on Mm-Hmm. So you don't have to be standing during an entire shift. And there again, you know, a a, a supervisor is going to know you know, what, what position that's going to be applicable to how easily it's going to be done, I suppose, moving you to a different space on the line where the stool can be accommodated more easily than it could be in some other position. These, these are the kinds of, of really practical level things that that can be can be done. But, you know, She makes a very good point too, that, you know, the education has to go down to the first line supervisor level so people know that this is something to be on the lookout for, how to recognize it, how to deal with it. And it may with one hopes, very often be something that can be completely taken care of at that level.

Sheri Oluyemi (41:11):
Right? So it may not require an overhaul of your disability or accommodation program. It might be something that you can, you can weave in as an add-on. It might be things that you're doing already. For example, a lot of employers already use the FMLA for, for, you know, pregnancy leave. And for time to see doctors during pregnancy, of course the employee has to be eligible. And a lot of our clients too are granting that benefit to even employees who have not been there a year just because they want to keep that employee working. So a lot of you are already doing these things. It may just require a little bit more of attention to the, the smaller changes, the, the more temporary changes. We touched on this earlier, but another thing I noted in my what to expect varying, varying degrees of medical documentation, there is no form like the FMLA certification form.

Sheri Oluyemi (42:07):
You may have a form that you've developed in, in-house according to the EOCs summary of the Pregnancy Workers' Fairness Act. You may not always be entitled to a doctor's note. So that's going to be believe, be something of a bit of a point of contention, I think, until we have some case law on how to deal with it. But don't be surprised when you get requests that are not of course, it should not be contrary to a doctor's note. If they bring a doctor's note, then you can work within the confines of that note. But there is, if there is none, you don't get to throw up your hands and say that you're unable to accommodate. Some limitations will be obvious and some not so obvious. The act specifically notes mental limitations. So things like postpartum depression those are things that are not going to be obvious or obviously related to pregnancy. So those are things that the employee may have to provide a doctor's note to better explain. But for the more obvious requests, again, don't be surprised if you are not presented with as detailed a doctor's note as you would like,

Elizabeth K. Dorminey (43:13):
Oh, Sheri, you, you, you make me think of something else that's important. Do the and of course this isn't nailed down yet, but do the interim regulations or the, or the proposed regulations, do they say anything about posting requirements?

Sheri Oluyemi (43:27):
Well, it would go in your Title VII poster.

Elizabeth K. Dorminey (43:30):
Okay. So that's just a, a, a new and improved title VII poster.

Sheri Oluyemi (43:34):
Exactly. like I said earlier, the the regs that deal with procedural regulations, record keeping, reporting requirements, posting requirements they all apply to the Pregnancy Works Fairness Act.

Elizabeth K. Dorminey (43:48):
Mm-Hmm, <affirmative>, but you don't need a special no pregnancy PWA,

Sheri Oluyemi (43:53):
I think a new poster would probably have been issued when this became effective back in June of 2023. So if you haven't downloaded a new poster or had your vendor send you a new one since then. Good point, Betsy. I recommend you get a new poster. <Laugh>

Elizabeth K. Dorminey (44:09):
Well, I mentioned this because we don't see it very often, but these, all these, this suite of laws do contain frequently language that imposes fines for failure to comply with posting and a creative, and, and and resourceful plaintiff's lawyer sometimes will tack on a, a cause of action for, for, for a failure to post. And it's a, you know, it's a, it's a fine.

Sheri Oluyemi (44:32):
Exactly. Exactly. All right. So we are at our 45 minute mark at this point. The floor is open for questions. Okay. Well, I see a question in the q and a, I'll go ahead and read it out. The question said, do you suggest simply taking someone's word for their pregnancy for a new employee with no visible signs of pregnancy for reasonable accommodations? You wanna start us off on that one, Betsy?

Elizabeth K. Dorminey (44:56):
Well, that would be that would probably be the more prudent approach, let's just say sooner or later the truth is going to come out and you'll know whether they were telling you a fib or telling you the truth. I know sometimes it's an excuse and, you know, you may get into some privacy things, but you know, God forbid you're wrong and you, and you and you say the wrong thing or, and sadly, some many pregnancies do end before term. And you know, the situation may change and you may have HIPAA considerations at that point when you begin to inquire. So it probably would be good to take their word for it. But I would also urge, you know, again, documentation to say on this date this employee may told me X what do you think, Sheri?

Sheri Oluyemi (45:48):
I agree with you, Betsy, to err on the side of caution, especially before we have cases interpreting this new statute, that you do err on the side of caution and you do take their word for it. The question has some nuances. It says, for a new employee, which implies you don't know what their credibility's worth at this point, they're brand new. So you have a reason to be a little bit doubtful. And the question also says no visible signs. So although we, we agree that you should err on the co on the side of caution and take their word for it, the EOCs guidelines do specifically talk about obvious conditions. It says, if there is an obvious condition, you don't get to wait on a doctor's note. So in her question, the condition is not obvious. So maybe the employer may get away with saying, well, I didn't know and so I couldn't accommodate. It's a risky position to take. You may have some,

Elizabeth K. Dorminey (46:44):
But if they tell you that's something else, again, and, and ditto with the applicant, I think that that's something that may, that may may raise some, some challenges in the implementation. Right? Right. Someone comes to, you know, fills out a job application and maybe in the interview they volunteer, by the way, I'm pregnant. And then if you decide for I'm sure legitimate and non-discriminatory reasons that they're not the right employee for you, you might find yourself on the receiving end of a charge that says, well, as soon as I told them I was pregnant, I was off consideration. Right.

Sheri Oluyemi (47:14):
Even if the pregnancy is not obvious, if, if that's, if that's something they told you started with the EOC, they're probably going to believe that employee, especially if they turned out they were, like you said, it's only a matter of time before you can confirm that. So yes, to answer your question, we would suggest that you take their word for it, document what they have told you and what you intend to do, and then give it time. It's would be a month or two before you can confirm whether this person is trustworthy or not. Of course, if you're having trouble coming up with an accommodation and the interactive process is going nowhere, I would say that a doctor's note would be helpful to that employee. And you could tell the employee, if you just get a note, we'll have it in black and white. What you can and cannot do, this process will go a lot faster for you and me. And if that person is more interested,

Elizabeth K. Dorminey (48:10):
I'm sorry, you might not know a risk situation, for example.

Sheri Oluyemi (48:14):
Yes, yes. If that person is more interested in working than they are you know, bringing complaints, they would get a doctor's note because that way it would be clear for both sides what the limitations are and you would know what you need to accommodate.

Elizabeth K. Dorminey (48:31):
Mm-Hmm. <Affirmative>

Sheri Oluyemi (48:32):
I see another question. Oh, it's just a Thank you. You're very welcome. <Laugh> <laugh>. Any other questions for us? Let me, what should you do when it's time to have the baby and the employee does not qualify for FMLA? If we grant leave, how much time should you allow? I would say this is a very exact situation that the Pregnancy Workers' Fairness Act was meant to address. See, because there's no minimum requirement for tenure for the employee. So even if they don't qualify, the Pregnancy Pro Pregnant Act would require that you grant the employee some leave to have the baby, especially if the limitation is for example maybe something to do with nursing if the employee cannot stay at work because you know, they need to nurse the child and, and they're not able to express and they're experiencing pain because of that situation. That's an instance where I can see that this is a known limitation. So a, a medical impairment that is resulted from the pregnancy, the access arising out of pregnancy and the employee needs a temporary accommodation to take leave for the period in which expressing milk and not able to do so in advance to, to keep the child at home and not go to work. That's an example. That's

Elizabeth K. Dorminey (50:04):
A, that that does pose a good prickly question, though. It's a, it's, it's an interesting one. I don't think there are any particular time limits built into the PWFA the way there are in the FMLA where you've got there 12 weeks. So that, that, that changes, that changes the dynamic a little bit. And of course, it doesn't have to be paid leave, it can be unpaid leave. You're not required to provide paid leave for these things. But I'm, I am reminded of a contractor that I spoke to one time who, who I was, I think I was probably apologizing for something that was in poor shape in my house, and I said, well, it was only meant to be temporary, and so on and so forth. And he was Ukrainian, I believe, and he leaned back and he said, he is nothing lasts so long as temporary. So it may be that you'll come upon some of these temporary situations that can go on for quite a while. So that'll be an interesting challenge for everybody to figure out in the implementation. And I'll be interested to see if the final regs do provide any guidance for figuring out how long something temporary needs to go on.

Sheri Oluyemi (51:09):
And I think we can, we can draw from the a DA here. The question is, if we grant leave, how much time should you allow? Think about it from an a DA perspective, how would you go through that analysis? The employee may be has a broken leg and needs time off to heal? Well, how much time they need to heal. A Dr. May know, a Dr. May say the prognosis is they'll be better in three months. So you give them a three month leave under your a DA plan. And that's how you determine how long it should be for pregnancy.

Elizabeth K. Dorminey (51:39):
Yeah. Well, a good point. Well, excuse me, but just you, you make me think of the, of, of some of the a DA problems that we have had, though the EEOC at a certain point took the position that unlimited leave was a reasonable accommodation,

Sheri Oluyemi (51:53):
Was not, or was

Elizabeth K. Dorminey (51:54):
Yeah. But they, that that was their a valid position at a certain point. But

Sheri Oluyemi (51:59):
I think, I think the courts have resoundly

Elizabeth K. Dorminey (52:01):
Rejected. I think they said no to that one final. Yes,

Sheri Oluyemi (52:03):
Unlimited leave is not a reasonable accommodation. So the same would apply for the PWFA because the law says it's the same definition. Reasonable accommodation is defined the same way as it is in a 88. So unlimited leave is a for this employee. But how much leave, I think we'd have to go back to the doctor on this one. The employees claiming they have this condition that arose out of their pregnancy. What's your prognosis? How long before they can come back to work? And if the doctor certifies three weeks, three months, then if that's a reasonable accommodation for your workplace, meaning an undue hardship, that may tell you how much time they need. I think that's one that I may, I may document by getting a doctor's note.

Elizabeth K. Dorminey (52:48):
Mm-Hmm, <affirmative>.

Sheri Oluyemi (52:50):
But yes, there is no bright line rule. There is no maximum time under the PWFA the way there is in the FMLA. It, there's, there is no maximum rule, but at least we know that it doesn't have to be indefinite. So our advice will probably be to, to go to the doctor and ask, what is this condition? How long do you think it's gonna last? And then go back to your team and think, well, can we hold this employee's job? Can we backfill it in the interim? Those type of considerations that you would make under the A DA

Elizabeth K. Dorminey (53:23):
Mm-Hmm. <Affirmative>,

Sheri Oluyemi (53:26):
That was a great question. That one, that was a very good question. That's a difficult question. <Laugh>, very difficult question. And again, we forgot our usual disclaimer. We're not giving legal advice. We're giving legal information. <Laugh> <laugh>, if you need specific legal advice on the specific circumstance, give us a call. I'm sure if you registered for this webinar, you have our contact information. Our website is ww dot wim law.com, and you could see all the various ways you could reach out to us on that website. Something we, we may have missed. Again, the proposed regulations are, are very lengthy. They have not been adopted. But if you want to really delve into the statute and you're curious about it, or you're going to be the person in charge of implementing it, read the proposed regulations. They are detailed. They include 43 examples of situations where the Congress expects you to act in a certain way based on a circumstance. So those examples are in the proposed regs. Of course, they're not final, so they may be scrapped completely, but that's at least one source of information, information.

Elizabeth K. Dorminey (54:42):
There's usually not a whole lot of light between proposed regs and final regs though. Okay.

Sheri Oluyemi (54:48):
So you think it'll, it'll look similar to what's proposed. It,

Elizabeth K. Dorminey (54:51):
It'll probably be fairly similar to that. The the, the, the volume of comments is, is huge. So, well, good thing, many of them may be the same things over and over again, or things that are unlikely to be addressed by any specific change in the proposal. So

Sheri Oluyemi (55:11):
And I have that number

Elizabeth K. Dorminey (55:12):
<Crosstalk> in my experience. Usually there's, there's, there's some small differences, but not huge ones. I have that

Sheri Oluyemi (55:16):
Number for you for exactly how many comments we received, what they received.

Elizabeth K. Dorminey (55:21):
Okay.

Sheri Oluyemi (55:22):
They received 188,000 comments.

Elizabeth K. Dorminey (55:28):
Yikes.

Sheri Oluyemi (55:29):
So comment, period closed back in October, and in that period of time, they received over a hundred thousand comments, which maybe they're still working through <laugh>. All right, Betsy, do you wanna close us out for the afternoon?

Elizabeth K. Dorminey (55:46):
Well, I'd be delighted to. Thank you very much, Sheri, you've obviously put a lot of very thoughtful study into the the, the, the statute and the proposed regs and everything, and I think you did a masterful job of, of laying out the, the, the theory and the practice for both of these things. So thanks a lot.

Sheri Oluyemi (56:05):
Thank you too, Betsy, thank you for being my co-host yet again. I think we are a formidable team, <laugh>, and thank you to everyone for joining us this lovely afternoon. If you're in Atlanta, it's nice and sunny. Like I said, you have our contact information. Please reach out. It was a pleasure to host the webinar and have a good rest of your Friday.

Elizabeth K. Dorminey (56:25):
Thanks very much.