Federal employment law is about to give birth to some long-overdue requirements. As of June 27, 2023, employers with 15 or more employees must provide pregnancy-related accommodations to employees and applicants under the federal Pregnant Workers Fairness Act (PWFA). Below we’ll refer to employees and applicants collectively as “employees.”
Pregnancy Related Accommodations
Under the PWFA, employees are entitled to accommodations for a condition related to or affected by pregnancy, childbirth, or a related medical condition. The condition can be physical or mental. Pregnancy-related conditions include, among others, morning sickness, gestational diabetes, post-partum depression, and lactation.
This law expands employer obligations beyond what is already required by the Americans with Disabilities Act (ADA) in that being entitled to a pregnancy-related accommodation does not require that the employee’s condition rise to the level of disability. Also, employees are entitled to accommodations even if they can’t perform their essential job functions on a temporary basis.
Possible accommodations include but aren’t limited to:
- Providing more frequent or longer breaks
- Modifying a food or drink policy
- Providing seating or allowing the employee to sit more frequently if their job requires standing
- Observing limits on lifting
- Providing job restructuring, light duty, or a modified work schedule
Employers can’t require an employee to take leave if a reasonable on-the-job accommodation is available. Like the ADA, the employer and employee should engage in the interactive process to determine what reasonable accommodations can be provided. However, if the employer is willing to grant the employee’s request, the interactive process is not required.
Note that many states have already implemented pregnancy accommodation laws, some of which may be more generous than the PWFA. Employers need to apply the law—or the aspect of each law—that is most favorable to employees.
Undue Hardship Exception
Employers don’t have to provide an accommodation if doing so would cause an undue hardship on the operation of the employer’s business. Undue hardship is defined as “an action requiring significant difficulty or expense,” the same as under the ADA. This is a high standard for employers to meet.
- Add a pregnancy accommodations policy to your handbook if you don’t already have one.
- If you’re subject to a state law that provides similar accommodations, make sure your policy captures the most employee-friendly aspects of the applicable laws.
- Ensure that managers are aware of the law and types of accommodations that may be required.
Federal: EEOC Releases PWFA Resources
- Tips for workers to request accommodations
- “Know Your Rights” video series
- Revised “Know Your Rights” poster that must be posted in the workplace
- What You Should Know about the Pregnant Workers Fairness Act
- Infographic for employers
- PWFA informational poster
The PWFA requires covered employers—those with 15 or more employees—to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless it will cause the employer an undue hardship.
On May 17, 2023, the U.S. Department of Labor released a field assistance bulletin (No. 2023-02) to help with enforcement of the pump at work provisions of the Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act), which amended the Fair Labor Standards Act.
Under the PUMP Act, most nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk while at work. This right is available for up to one year after the child’s birth.
This bulletin supplements previously issued materials, including:
- Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at Work;
- Frequently Asked Questions—Pumping Breast Milk at Work; and
- Pump at Work Protections under the Fair Labor Standards Act presentation.
Recently , the Equal Employment Opportunity Commission has increased the penalty for failing to post required EEO notices in the workplace from $612 to $659. The new $659 penalty is assessed for each offense, so employers with multiple worksites and/or locations where notices to applicants and employees are customarily posted may be subject to additional penalties. Federal law requires employers to post details of employees’ statutory rights in a conspicuous, accessible location in the workplace. The EEOC’s Know Your Rights: Workplace Discrimination is Illegal Poster generally satisfies these requirements and is made available in multiple languages.
On May 5, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) released an announcement stating employers have 30 days to comply with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. This means that employers using temporary flexibilities—first announced in March 2020 and extended through the pandemic—must ensure that all required physical inspections of identity and employment eligibility documents are completed by August 30, 2023.
History of Form I-9 Flexibilities
In its March 2020 announcement, ICE deferred the requirement that employers review employees’ identity and employment authorization documents in their physical presence, instead allowing it to be done remotely, with the expectation that physical inspection would occur within three business days after normal operations resumed. In follow-on guidance, ICE noted that employers could continue to implement the flexibilities until affected employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
In October 2022, DHS and ICE extended the flexibilities through July 31, 2023. The most recent clarification notifies employers that they have until August 30, 2023, to perform all required physical examinations of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities.
Going Forward: Authorized Representative Option
Employers with hybrid or fully remote workforces are now searching for answers on how to proceed with the physical inspection requirement. Unfortunately, DHS has not released any new guidance for employers who have remote employees who are far from physical office spaces where they can present their Section 2 documents or who have no physical offices at all. Until we await further word from DHS, the only other possible option for employers to satisfy the physical inspection requirement may be to designate an authorized representative to act on their behalf to complete Section 2. 8 CFR § 274a.2(b)(ii) allows anyone acting directly or indirectly in the interest of the employer or their agent to physically examine the identity and employment authorization documents and complete Section 2 with a signature.
An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. However, employers should be wary of designating a friend or family member of a new hire as the authorized representative. Employers should take steps, including formulating a policy, to ensure that the person designated understands the obligations of being an authorized representative and takes the responsibility seriously.
The employer is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf. Employees cannot act as authorized representatives for their own Form I-9. In most states, employers can use a notary public for the physical inspection of documents. In such cases, the notary public is acting as an authorized representative of the employer, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9. Notaries should sign in the capacity of an Authorized Representative and not use their title of “Notary Public.” Note that some states, like California and Texas, have restrictions on using notaries for Form I-9 verification in those states. Employers in other jurisdictions should always check their local laws for changes restricting the use of notaries public for Form I-9 verification.
Potential Future Relief
There have been no further updates on DHS’s published proposed rule which could provide alternative options for Form I-9 document examination, including a remote verification option. In the event that the proposed rule is not implemented by July 31, 2023, employers will need to follow existing rules for document verification. Resourcing Edge will continue to monitor and provide updates as they become available from DHS.