USCC comments
Published
October 11, 2023
October 10, 2023
Mr. Raymond Windmiller
Executive Officer, Executive Secretariat
U.S. Equal Employment Opportunity Commission
131 M Street, N.E.,
Washington, DC 20507
By electronic submission: http://www.regulations.gov
Re:Proposed Rule,RegulationstoImplement thePregnant WorkersFairness Act (88Fed. Reg. 54714, August 11, 2023); RIN 3046-AB30
DearMr. Windmiller
The U.S. Chamber of Commerce ("Chamber")presents these comments to the Equal Employment Opportunity Commission ("Commission"or "EEOC") inresponse to its Notice of Proposed Rulemakingand Request for Comments regarding the Pregnant Worker Fairness Act (the "PWFA" or the "Act") ("Proposed regulations"or "NPRM").
The Chamber worked extensively with a broad spectrum of advocates to find agreement on various provisions of the Act, and to push strongly for its passage. The Chamber took a leadingrole within the business community in recognizingthe gap in protective coverage of pregnantworkers and in helpingthe relevantstakeholdersto formulate a responsive and workable solution addressingthis issue.The passage of the PWFA demonstratesthat through good faith negotiations,legislativesolutions to important issues can be achieved.
Unfortunately, the proposed regulations stray from the text of the PWFA and the intentions of those who developed the legislation. In several key areas the EEOC has expanded the definitions and requirements of the PWFA in ways that will create excessive burdens on employers, confusion between employees and employers, and potentially increase opportunities for litigation-precisely the problems the PWFA was meant to solve.
BACKGROUND
The purpose of the PWFA is simple - to fill the coverage gap between the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA) to enable pregnant workers to remain in the workplace, through accommodations that do not present undue hardships. A key component to the bipartisan support for the PWFA was its incorporation of the widely known and accepted interactive process associated with the ADA that is the method for determining reasonable accommodations for employees covered by the ADA. The concept of the interactive process allows accommodations to be precisely tailored to meet the temporary needs of employees consistent with the workplace and productivity requirements. Drawing from experience under the Rehabilitation Act and the ADA and the 2008 Amendments, the interactive process appropriately lets the various enforcement agencies set the ground rules for the individual discussions between employee and employer while keeping the government from imposing arbitrary or heavy-handed accommodation requirements not carefully tailored. The Chamber strongly supports the PWFA and its intended application - to provide pregnant workers with reasonable accommodations for medical conditions relating to their pregnancy, through an interactive process as prescribed by the ADA. The interactive process is a bedrock of the PWFA. Unfortunately, the proposed regulations give it short shrift.
The Commission'sproposed regulationsattempt to greatly expand the PWFA's intendedcoverageto includenon-pregnantworkersandmedicalconditionsthatare not related to a woman's pregnancy. In doing so, the proposed regulations have no basis in the PWFA. The proposed regulations also greatly expand, beyond the language of the PWFA and the intention of its drafters, the obligationsimposed on employers -in an unreasonable, unfounded manner to cover accommodationsfor any reproductive issue of a pregnant or non pregnantworkerpotentially for multiple years at a time.
Specifically, the Chamber does not support the proposed regulations to the extent that they: include four "predictable assessments" for accommodations under the PWFA that do not require engagement in an interactive process; fail to clarify when the ADA and PWFA frameworks apply to accommodation requests; incorporate proposed definitions of "related medical conditions" and "qualified employee or applicant" that conflate "pregnancy" with "reproductive issues" making them overbroad and not based on the PWFA or its intent; do not follow the ADA standard for requesting medical documentation; and do not clarify further, the definition of "communicated to the employer."
COMMENTS
1. The"predictable assessments"arearegulatory overreach thatareinconsistent with the PWFA and should be eliminated from the proposed regulations (§1636.30)(4), 88 Fed. Reg. 54769).
The PWFA incorporates the definition of reasonable accommodation and undue hardship from the ADA. Under the ADA, theCommission advises that employers must make undue hardship determinations on a case-by-case basis and determine reasonable accommodations throughan interactiveprocessbetween the workerand the employer. Through individualized assessments, employers and employees work cooperatively toarrive at reasonableworkplaceaccommodations based upon the specificessentialfunctionsofa job, the nature of the workplace, and the employer'sspecificbusiness needs. Much of the support that the Chamberwas able to obtain for the PWFAwas based on the assurance that the interactive process would be a key element in the process of determiningappropriate accommodations for pregnant workers.
The Commission's inclusion of four "predictable assessments" for accommodations under the PWFA, which EEOC has concluded "will virtually always be reasonable accommodations that do not impose an undue hardship"is an unwarranted overreach which undercutstheindividualizedassessmentthatisthefoundationoftheinteractiveprocess under the ADA; thesame standard that Congress intended to beapplied under the PWFA. The Commission's assumption that the specific modifications proposed as "predictableassessments" are per se reasonable ignores the purpose of the interactive process which was foundationalto the PWFAand minimizesthe legitimatedifferencesin jobs and workplaces thatexistin this country.Providingseatingto performworktasks,whilesoundingsimple, may not be reasonable for every type of job and workplace. Requests for additional breaks to eat and drink are not per se reasonablewithout qualification. Rather, the determinationof reasonableness necessarily depends upon the specific accommodationbeing sought (e.g., how many breaks, how much time for each break, etc.), the type of work an employee is performing, and the workplace in which it is performed.
Compounding the issue, the proposed regulations specify that employers cannot require any medical documentation when a pregnant worker requests one of the four "predictable assessments." The Commission's proposed "self-attestation" to support requests for the "predictable assessments" could lead to abuse if employers are prohibited from obtaining medical documentation confirming that an employee who is not obviously pregnant is, in fact, pregnant and engaging in a full and appropriate interactive process as contemplated by the drafters of the PWFA. Nothing in the PWFA or its legislative history supports an agency headquartered in Washington, DC mandating individualized accommodations for the myriad jobs and employers throughout the country. Without this statutory permission, the EEOC is without the authority or latitude to prescribe "predictable assessments" for every workplace where a pregnant worker seeks anaccommodation under the PWFA.
Accordingly, the Commission should remove the "predictable assessments" from the proposed regulations altogether and restore the requirement that employers and pregnant workers engage in an appropriate interactive process under the PWFA for all accommodation requests to determine reasonable accommodationson a case-by-case basis. Such interactive processes need not be complicatedor time consuming, but they are essential to all parties having a clear understandingof how to proceed and makingsure all parties' interests are recognized.This is what thedrafters of the PWFA and Congress intended, and why they were the basis for the strong bipartisan support PWFA.
2. WhentheADA versusPWFAframework appliestoanaccommodation request needs to be clarified.
The PWFA was intended to fill in gaps between the PDA and ADA in terms of reasonable accommodations for pregnant workers because an uncomplicatedpregnancy is not a disabilityentitlinga workerto reasonableaccommodationundereitherlaw. However, the proposedregulations create ambiguity as tothe practicalinterplay between the ADA and the PWFA.
While both the ADA and PWFA require reasonable accommodations, the PWFA has a more lenient standard for accommodation when compared to the ADA because it requires employers to consider removing essential job functions as part of the reasonable accommodation(as long as the inability to perform an essentialfunction is temporary, the essentialfunctioncanbeperformedagaininthenearfuture,andaccommodatingthe inability to performthe essentialfunction can be reasonably accommodated). However, applyingthe loweraccommodationstandardunderthe PWFAto what the Proposed regulationspurportto be "pregnancy-related conditions"under the PWFAthat also constitute ADA disabilities could result in disparate treatment.
Forexample,a male andfemaleemployeebothhavebackinjuriesand are unableto lift more than 20 pounds. The male employee'sinjury is due to obesity; the female employee's backinjuryarisesfrompregnancy.Liftingmorethan20poundsis anessentialfunctionof both employees'jobs. Both employeessubmitmedicalcertifications thatstate they can lift 20 pounds again in nine months.
Under the ADA, the employerwould not be required to accommodatethe male employeebecauselifting20 poundsis an essentialfunctionofhis job. The Housereporton thePWFAcontemplatesthisoutcome,citingcaselawthatestablishesthat,whilean employermight need to grant leave to an employee if such leave will allow the employee to resume their essentialfunctionsin the near future, this is generally construedas a periodnot exceedingsix months. SeeHouse Report at p.28.1 By contrast, the same employer would be requiredtoaccommodatethefemaleemployeeiftheinabilitytoperformtheessential function can be reasonably accommodated because the proposed regulations explicitly state that, under the PWFA, in the "near future"is 40 weeks. In addition, under the PWFA, the employer could not place thefemale employee on leave unless it showed there was noon-the job accommodation available (including removal of an essential job function, which is not required under the ADA).
The proposed regulations should clarify that employers are to address requests for reasonable accommodation under the PWFA for conditions that would also constitute a disabilityunder the ADA by first analyzingthe issue under the ADA to determinewhether the conditionwouldconstituteanADA-qualifyingdisability.IfitwouldqualifyundertheADA, then the ADA framework should apply to the reasonable accommodation process. If the conditionwouldnot qualify as a disabilityunderthe ADA, and itis pregnancy-related, then it should be considered for reasonable accommodation under the PWFA process. Since the PWFAis merely a gap-fillingmeasure, this processwould be appropriateand lead to consistenttreatmentinthe workplace,whichis the goal oflegislationenforcedby the EEOC.
3. Theproposed definitionof "related medicalconditions" isoverbroad and attempts to re-write the PWFA (§ 1636.3(b), 88Fed. Reg. 54767).
The proposed definition of "related medical conditions" to pregnancy and childbirth in
§1636.3(b) would extend the PWFA far beyond the intent or understanding of the law's bipartisan advocates or those who drafted the bill. As the EEOC notes in the NPRM, the PWFA is intended to fill a gap in the definition of "disability" under the ADA as to uncomplicated pregnancy and conditions related to pregnancy or childbirth (such as morning sickness and other typical issues that accompany uncomplicated pregnancies). Accordingly, the purpose of the PWFA is to ensure that workers receive consideration for workplace accommodations for issues directly related to being pregnant. The proposed definition and examples of conditions that fall under the purview of "related medical conditions" would inappropriately broaden the scope of the PWFA to encompass any issue remotely related to reproduction - whether it directly relates to a current or recent pregnancy or not. This was never the intent of the law. The legislative history is replete with references to easing hardships for "pregnant" workers, not "potentially pregnant", "seeking to become pregnant", or "long ago pregnant" workers."2
The commentary to the NPRM on page 54715 states that "related medical conditions" is a term from Title VII that previously has been defined by the Commission. The Commission then cites first to USC 2000e(k), the Title VII definition of "because of sex" or "on the basis of sex," which specifies that those terms include pregnancy, childbirth or related medical conditions. Title VII does not define the term "related medical conditions" generally or in the context intended by the PWFA- which is conditions directly related to a current or recent pregnancy- as opposed to potential, intended, hoped for, or long-past pregnancy. The Commission also cites to its Enforcement Guidance on Pregnancy Discrimination II (2015) at I.A.4 II(2015)3, as support for the contention that "related medical conditions" is a term previously defined by the Commission. However, the cited section simply states:
Title VII prohibits discrimination based on pregnancy, childbirth, or a related medical condition. Thus, an employer may not discriminate against a woman with a medical condition relating to pregnancy or childbirth and must treat her the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions.
Clearly, this is not the same as the broad definition of "related medical conditions" in §1636.3(b) of the proposed regulations. The overarching purpose of the Title VII definition is to ensure that employees are not discriminated against on the basis of sex, and clarifying that pregnancy and related conditions are included in that prohibition against discrimination. This is different from the purpose of the PWFA, which is to fill the gap and enable pregnant workers to receive workplace accommodations that they are not otherwise eligible for under the ADA or Pregnancy Discrimination Act.
The Commission should appropriately narrow the definition of "related medical conditions"forthePWFAtoclarifythatonlyconditionsdirectlyrelatedtoanactual pregnancy (current or recent (meaningwithin the past six months or less)) arecovered bythe PWFA. Requests for workplace accommodations for reproductive health issues that are not directlyrelated to an actual current, orrecentpregnancy,such as menstruation,use ofbirth control, endometriosis, incontinence, infertility, etc. should be analyzed under the ADA rather than the PWFA.
Indeed, the proposed definition of "related medical conditions" under the PWFA to includeissuessuchas fertility/infertilityandbirth controlcouldleadtogenderdiscrimination claims againstemployersunless male workersare eligiblefor accommodationunderthe PWFA for the same issues, which isclearly beyond the scope of what was intended bythelaw (and further demonstrates why thePWFA definition should be narrowed). For example, amale employeeseekingaccommodationfor fertility/infertility treatmentsortestingwouldbe considered for accommodation under the ADA framework, which does not require that an employerconsiderremovingan essentialjob function as a reasonable accommodation. However, if that same worker was female, she would beeligible for accommodation under the PWFAframework,whichrequiresemployersto considerremovingessentialjob functionsfor a temporaryperiod as long as the function can be performed again in the near future, and the requestcanbeaccommodated.This typeofdisparatetreatmentisinconsistentwiththe intent of the PWFA.
4. TheEEOC'sproposeddefinitions regarding a"qualifiedemployee orapplicant" need to be limited (§1636.3(f)(2), 88 Fed. Reg. 54767).
The PWFAprovides that an employee or applicantshall beconsidered"qualified"even ifthey cannotperformone or more essentialfunctionsoftheirjob as long as the inability to performthe essentialfunctionis (1)for"a temporaryperiod,"(2)the essentialfunctioncould be performedagain "inthe near future," and (3) the inability to performthe essentialfunction can be reasonablyaccommodated.Congressleftit to the EEOCto define the terms"in the near future" and "temporary period" which the Commission has done in §1636.3(f)(2) of the proposed regulations.
Forty weeks isnot "inthe near future." The EEOC proposes to define "in the near future"to mean that"the abilityto performthe essentialfunction(s)will generallyresume within forty weeks of the suspension"of an essentialfunction. This proposed definitionis grossly overbroad.A full-term pregnancyisa temporarycondition generallylasting40 weeks or less. If Congress had intended "in the near future" to mean a period lastingas longas the entire duration of a full-term pregnancy, then the PWFAsimply would have specified that "qualified"pregnantworkersneednot be able to performthe essentialfunctionsoftheirjob. Of course, this is not what the PWFA says.
Indeed, this was a specific point of negotiation to gain bipartisan support for the PWFA. As introduced inthe116th Congress, the PWFA did not include a requirement that the employee or applicant be able to perform the essential functions of the job, with or without reasonable accommodation, to be entitled to accommodation. However, as noted in the House Report on the PWFA at page 534, Ellen McLaughlin, a partner with Seyfarth Shaw LLP specializing in labor and employment law, raised significant concerns with this omission of the requirement that the employee or applicant be able to perform the essential functions of the job, with or without reasonable accommodation, when she testified before the Subcommittee on Civil Rights and Human Services in 2019, calling it a "key provision of the ADA" (on which thePWFAwas based). To addressthese concerns, the PWFAwas amended to add a requirement that the employee or applicant be "qualified," meaning the individual, "with or without reasonable accommodation, can perform the essential functions of the employment position." In addition, to address concerns from supporters of H.R. 1065 that workers with known limitations related to pregnancy who are temporarily unable to perform an essential function be able to receive an accommodation, the amendment included what was intended to be a limited exception that an employee or applicant "shall be considered qualified if-(A) any inability to perform an essential function is for a temporary period; (B) the essential function could be performed in the near future; and (C) the inability to perform the essential function can be reasonably accommodated."
Defining"inthenearfuture"as40weekswouldcompletelyevisceratethis amendment because a pregnant worker could be entitled toaccommodation even if she could not performthe essentialfunctions ofherjob for the entire length ofher pregnancy.This is plainly not what Congress intended.
Moreover, the House Report on the PWFA itself provides additional evidence the legislature did not intend "in the near future" to mean 40 weeks. On page 28, the House Report notes that, under the ADA, "courts have found workers are entitled to reasonable accommodations if they only need a finite leave of absence or a transfer that would allow them to perform the essential functions of the job in the near future."5 The case example cited in the House Report for this proposition is Robert v. Board of County Commissioners of Brown County, Kansas, 691F.3d1211,1218(10thCir.2012). InRobert, theTenthCircuit laidout a framework for determining the reasonableness of a request for leave under the ADA, noting there are two limits on bounds of reasonableness for a leave of absence due to a temporary inability to perform the functions of the job:
The first limit isclear:The employee must provide theemployer an estimated date when she can resume her essential duties. Without an expected end date, an employeris unable to determine whether thetemporary exemption isa reasonable one. The second is durational. A leave request must assure an employerthatan employeecanperformthe essentialfunctions of her positionin the "near future."
691F.3d at1218 (internal citations omitted and emphasis added). TheTenth Circuit went on to hold that, "[a]lthough this court has not specified how near that future must be, the Eighth Circuit ruled in an analogous case that a six-month leave request was too long to be a reasonable accommodation." Id. (citing Epps v. City of Pine Lawn, 353 F.3d 588, 593 (8th Cir. 2003)).
The Roberts case is viewed as establishing a bright line that six-months (26 weeks) is too long to mean "in the near future." Indeed, the Tenth Circuit acknowledged as much in its subsequentdecision inHwang v. Kansas State University, 753 F.3d1159,1161-62 (10thCir. 2019).TheHouseReport'sexplicitcitationtotheTenthCircuit'sopinionin Roberts can only mean Congress did not intend "inthe near future" to be as long as 40 weeks, but rather, a period less than six months.
Accordingly, theChamber recommends that the§1636.3(f)(2) definition of "in the near future" be revised to "a period of less than six months."
Longer than 40 weeks is not a "temporary period." The proposedregulationsdefine "temporaryperiod" as a period, "lasting for a limited time, not permanent, and may extend beyond 'inthe near future."' The definition of "temporary period" needs revision for the same reasonthat"inthenearfuture"shouldbelessthansixmonths.Indeed,"temporary"should not exceed six months generally and should not "extend beyond 'inthe near future."' The defined periods for "temporary"and "inthe near future" should be co-extensiveas used inthe proposed regulation.
"Can be reasonably accommodated" is not the same as undue hardship. Thereis yet another issue with the Commission's proposed standard under which an employer evaluates whether a pregnant workerwho cannot perform an essential function of the job is "qualified."Like the languagein the PWFA, §1636.3(f)(2)(iii) of the proposed regulations states that a pregnantworkeris qualifiedonly if the temporarysuspensionofessential functions "can be reasonably accommodatedbythe employer." The Commission then goes on to providemultipleexamplesofsituationswherethe suspensionofessentialfunctionscanbe a reasonable accommodation.However, the proposed regulations provide no examples where an employer concluded that it could not reasonably accommodatethe inability to perform essential functions.
Whatis more concerning,however,is thatthe Commissionis conflatingthe inclusion of "reasonably accommodate"in§1636.3(f)(2)with the undue hardship standard. The Commission suggests several times inthe NPRM and examples that, for an employer to take the position that an employee is not "qualified"under the definitionin §1636.3(f)(2), itmust demonstrate that the proposed accommodationplaces an undue hardship on the employer. However,thisisnotwhatthePWFA oreven§1636.3(f)(2) says.Rather,anemployer mustonly establish that the temporary suspension of the essential function cannot be "reasonably accommodated" in order to deny a reasonable accommodation under §1636(f)(2). Understanding the impact to employers of having to excuse the performance of an essential function, even ona temporary basis, Congress expressly chose a standard lower than undue hardshipin the negotiatedtextthatresultedin theseconddefinitionof"qualifiedemployee."
Accordingly, the proposed regulations should acknowledge this lower burden and include examples of when an employer could not reasonably accommodate a temporary inability to performan essentialfunction. Although the proposedregulationscontain a specificdefinitionofunduehardship,its definitionforreasonableaccommodationunder §1636(f)(2)is singularly unhelpful. In §1636.3(i)(5), the proposed regulation states that the "temporarysuspensionof one or more essentialfunction(s) ...is a reasonable accommodationifan applicantor employeewith a known limitationis unable to perform one or more essential functions with or withoutreasonable accommodationand the conditions in paragraph (f)(2) of this section are met." This is a circular definition because paragraph (f)(2) itself requires a determination by the employer that the suspension cannot be reasonably accommodated.
In addition, the following issues should be addressed in the Proposed Regulation set forth in §1636.3:
(1) Appropriate payadjustmentsarepermissible. Anemployee's compensation can be adjusted during the period in which essential job functions are suspended or if the employee must be placed in a lower paying position as an accommodation. This is not specifically addressed in the NPRM but would be consistent with language elsewhere in the NPRM stating that, if a production standard is lowered as an accommodation, the employee's pay can be proportionately reduced.
(2) Multiple periods of "temporary inability" to perform essential functions were not contemplated byCongress. The proposed regulations permit a scenario in which more than oneperiodoftemporaryinabilityto performessentialfunctions canoccur during a pregnancy. However, thePWFA refers to"a period of temporary inability."Despite this, the proposed regulations appear to contemplate multiple periodsoftemporaryinability-eachofapotential40-weekduration--thatcould be stacked to result in the requirementfor removal of essential functions for far beyonda totalof40weeks(forexample,40weekspre-pregnancy, 40weeks duringpregnancy,and then 40 weeks post-partum, and this could repeatwith subsequent pregnancies). This could amount to a period of well over two years, which was never contemplated by Congress or the Act's supporters. The proposed regulations should clarify that there is only one period of temporaryinability per pregnancyor alternativelythatmultipleperiodstogethercannotexceedthe durationstatedin the definitionof"inthe nearfuture,"whichwe proposedto be less than six months.
5. ThePWFAregulationsshould follow theADAdocumentation standard (Section 1636.3(1), 88Fed. Reg. 54769).
Rather than simply following the established framework of the ADA for requesting medicaldocumentation, the proposedregulationsonlypermitan employerto require supportingdocumentationwhen itis "reasonableunderthe circumstances." Underthe ADA, anemployer can require documentation to support a request for accommodation except when the need for the accommodationis obvious. The documentationrule should be no different underthePWFA.ApplyingtheADAframework'sfamiliarbrightlineguidanceismoreuseful to employers than an amorphous and new "reasonableness" standard. Under the proposed regulations, an employer will never know when the "reasonableness" of their request for documentation might be second-guessed.
While theChamber agrees that it is not reasonable for anemployer to require proof of pregnancywhen an employee'spregnancyis obvious, the proposedregulationsshould specify that employerscan require proofofpregnancywhen a pregnancyis not obvious. Moreover, whether a pregnancy itself isobvious, employers should beable to require medical documentationconfirmingthat a requested accommodation is related to pregnancy and is necessary. The Commission's proposed self-attestation process has the potential to lead to abuse by employees, especiallywhen paired with a limitation on the ability to require documentation of a non-obvious pregnancy.
The Proposed regulations suggest that pregnant workers face more challenges obtaining medical documentationthan employees suffering from non-pregnancy-related impairments. However, a pregnant worker's ability to see a health care provider is no more difficult than an employeeseekingan accommodationunder the ADA for a new or non chronicimpairment.Both may not have already been consultinga physicianwhen the need for accommodation arose, but medical documentation can be obtained. Thus, an employer should be able to require medical documentationunder the PWFA tothe same degree that it can under the ADA (and provide temporary accommodations conditioned upon the receipt of documentationin a reasonable period of time).
The Chamber also believes that the Commission should allow employers to require a periodicupdate frompregnantworkers, includingmedicaldocumentation,as to the necessity of a continued accommodation.For example, an employee who is suffering from morning sickness early in pregnancy who asks for a later start time may not need that accommodation as her pregnancy progresses. An employer should be able to request medical updates on a periodicbasis to determinewhetheran accommodationcontinuesto necessaryas itcan under the ADA.
6. Thedefinitionof"communicatedtotheemployer"shouldbeclarified (§
1636.3(d),88Fed.Reg. 54767).
The accommodation process under the PWFA will only be effective tothe extent an employer is adequately and appropriately put on notice of the need for an accommodation under the statute.
The proposedregulationsstate thata coveredworkershouldbe permittedto request an accommodation through multiple avenues and means, including "a supervisor, manager, someonewho has supervisoryauthorityfor the employee(orthe equivalentfor an applicant), or human resources personnel, or by following the covered entity's policy to request an accommodation." The Chambersupports this definition as consistentwith the process that many employers follow for requestingan ADA accommodation, especially since it expressly contemplates that employerscan create a policy with their own, more narrowprocess for making anaccommodation request. However, theChamber believes that any expansion of the universe of persons to whom an accommodation request can be made beyond supervisory personnel or human resources would create an unmanageable process for employers.
The proposed regulations also state that, to request a reasonable accommodation,the employee or applicant need only communicate: (1) the limitation, and (2) that the employee/applicant needs an adjustment or change at work. The Chamber believes that the proposed regulation should be modified to state that the employee must communicate (1) the limitation; and (2) that the employee/applicant needs an adjustment or change at work due to the limitation. This slight change would clarify that the employee may only request accommodations that are necessitated by the limitation (which is necessarily related to pregnancy). Case law interpreting the ADA is clear that, while the burden to provide notice under the ADA sufficient to initiate the reasonable accommodation process is not a heavy one, adequate notice does require that the employee or applicant inform the employer both of the disability, limitations associated with the disability, and the need for accommodations based on that disability. EEOC v. Fed. Express Corp., 513 F.3d 360, 369 (4th Cir. 2008).
CONCLUSION
The Chamberis disappointedat the Commission'sattemptto grosslyexpandthe PWFAthrough the proposedregulationsfarbeyond the gap fillingmeasurethat itwas intended to be. The PWFAwas not intended to open the door to obligatingemployersto remove essentialjob functions for virtually any reproductive issue for years at a time. Nor was the PWFA intended to supersede the PDA or the ADA, or even Title VII.Accordingly, the Chamber urges the Commission to revisit the proposed regulations and appropriatelytailor them to reflect the intent of the law.
Sincerely,
Marc Freedman
Vice President, Workplace Policy
Employment Policy Division
U.S. Chamber of Commerce
Of Counsel:
SEYFARTH SHAW, LLP
Camille Olson
Lawrence Lorber
Karla Grossenbacher
Debbie Caplan
1 https://www.govinfo.gov/content/pkg /CRPT-117hrpt27/pdf /CRPT-117hrpt27-pt1.pdf
2 See Footnote 48 of the NPRM (88 Fed. Reg. 54720) citing to Markup of the Pregnant Workers Fairness Act, at 54:46 (statement of Rep. Kathy E. Manning) (goal of the PWFA is help pregnant workers "to deliver healthy babies while maintaining jobs"); id. at 21:50 (statement of Rep. Robert C. Scott) ("[W]ithout these protections, too many workers are forced to choose between a healthy pregnancy and their paychecks"), id. at 1:35 (statement of Rep. Lucy McBath) ("[N]o mother should ever have to choose between the heath of themselves and their child or paycheck."); id. at 1:44 (statement of Rep. Suzanne Bonamici) ("[Plregnant workers should not have to choose between a healthy pregnancy and a paycheck.").
3 https://www.eeoc.gov/laws/guidance/enforcement-guidance-preg nancy-discriminationand-related-issues
4https://www.govinfo.gov/content/pkg /CRPT-117hrpt27/pdf /CRPT-117hrpt27-pt1.pdf
5 https://www.govinfo.gov/content/pkg /CRPT-117hrpt27/pdf /CRPT-117hrpt27-pt1.pdf
USCC comments
About the author
Marc Freedman
Marc Freedman is vice president of workplace policy at the U.S. Chamber of Commerce. He develops and advocates the Chamber’s response to OSHA matters; FLSA issues such as overtime, minimum wage, and independent contractors; paid leave issues; EEOC, and other labor and workplace issues.
