Anyone scrolling YouTube in the evenings has likely come across a humorous video of men trying their luck at a “period pain” machine, which simulates the pain and discomfort many women experience on a monthly basis from menstruation. In the videos, the men are usually in agony by the time the highest setting is applied, and at least one usually exclaims something like, “Is this really what women go through every month?”
Yes, it is, and now, it may be protected by law.
Pregnancy Protections
Effective June 2023, the Pregnant Workers Fairness Act (PWFA) requires covered employers (meaning businesses with 15 or more employees) to provide reasonable accommodations to qualified employees or applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or “related medical conditions” unless the accommodations will impose an undue hardship on the employer.
This raises the following questions: What medical conditions are “related” to pregnancy and childbirth, and what should employers consider when analyzing requests for reasonable accommodations under the PWFA?
What Constitutes a Condition Related to Pregnancy?
The U.S. Equal Employment Opportunity Commission (EEOC) endeavored to answer these questions through regulations that became final on December 29, 2023. The regulations, originally published in August 2023, define the terms “pregnancy” and “childbirth” to include current pregnancy, past pregnancy, potential or intended pregnancy, labor, and childbirth. The term “related medical condition” is defined as medical conditions that “relate to, are affected by, or arise out of pregnancy or childbirth, as applied to the specific employee or applicant in question,” and it specifically includes:
- Miscarriage, stillbirth, or abortion;
- Infertility;
- Gestational diabetes;
- Preeclampsia (a blood pressure condition arising during or after pregnancy);
- Endometriosis (a reproductive disorder characterized by above-normal menstrual pain);
- Sciatica;
- Carpal tunnel syndrome;
- Chronic migraines;
- Dehydration;
- Nausea or vomiting;
- Postpartum depression, anxiety, or psychosis;
- Menstrual cycles;
- Use of birth control; and
- Lactation and conditions related to lactation.
While some of these conditions (e.g., preeclampsia and gestational diabetes) are already expressly protected by Nevada state law, the inclusion of conditions such as menstruation causes the regulations to far exceed current federal and state law. Moreover, per the EEOC’s regulations, the above list isn’t exhaustive, and an employee doesn’t need to use specific medical terms to describe a condition to be eligible for a reasonable accommodation.
Additionally, the condition leading an employee to seek an accommodation under the PWFA can be a “modest, minor, and/or episodic problem or impediment,” and there’s no threshold of severity.
What Is a Reasonable Accommodation Under the PWFA?
The EEOC regulations identify certain reasonable accommodations that, “in virtually all cases,” the agency believes wouldn’t impose an undue hardship on the employer when requested by an employee. These reasonable accommodations include allowing an employee to carry water and drink as needed in the employee’s work area, allowing additional restroom breaks, allowing an employee whose work requires standing to sit (and vice versa), and giving employees breaks to drink and eat as needed.
While not characterized as reasonable per se, other potential accommodations identified in the PWFA include job restructuring, modified schedules, permitting use of paid leave, providing unpaid leave, and providing reserved parking spaces.
The EEOC also notes that in certain circumstances (especially when the underlying medical condition is temporary in nature), an employer may even be required to suspend one or more of an employee’s essential functions—a rule that marks a substantial change from other laws governing reasonable accommodations, such as the Americans with Disabilities Act (ADA).
The regulations also advocate for accommodations relating to lactation, but because Nevada already maintains a lactation accommodation statute, this doesn’t mark a significant change for Nevada businesses.
Practical Considerations for Employers
As the EEOC’s regulations become final, you should consider the following:
Update employment policies. Now is the time to update company policies regarding equal employment and the provision of reasonable accommodations. In particular, you may want to consider updating your policies’ definitions of “pregnancy” and “related medical conditions” to comply with the PWFA.
Carefully consider if a condition could be related to pregnancy, but don’t ask questions requiring disclosure of sensitive medical information. Although some medical conditions are explicitly defined in the PWFA to fall under “related medical conditions,” the law is likely to be interpreted broadly. Thus, you should be cautious not to interpret the term too narrowly. Also, while you can ask clarifying questions to assess what accommodations may be reasonable and appropriate, be careful not to force employees to disclose private medical information.
Don’t rush to demand medical documentation. You may only require documentation confirming the need for an accommodation if you reasonably need such documentation to determine whether to grant the accommodation. If the condition and the need for an accommodation are obvious, no documentation should be requested. Also, if the employee has already provided sufficient information to substantiate the known limitation and need for accommodation, it’s unreasonable to require documentation.
Don’t go it alone. As the above demonstrates, providing reasonable accommodations under the PWFA is likely to be a territory filled with landmines. You need to ask for enough information to assess what accommodations are needed but can’t ask for private medical information. You will also want to require medical documentation to avoid abuse, but the circumstances in which you can ask for documentation are limited.
Because each circumstance is unique, it’s important to consult with employment counsel to navigate the application of this new law and the protections it affords.
Shannon S. Pierce and MaryJo E. Smart are attorneys with Fennemore Law in Reno, Nevada, and can be reached at spierce@fennemorelaw.com and msmart@fennemorelaw.com.