The EEOC has recently issued guidance addressing a variety of issues under the Americans with Disabilities Act, the Pregnancy Discrimination Act, and Title VII of the Civil Rights Act.
What is unique about this recent guidance is that the materials, entitled “Legal Rights for Pregnant Workers Under Federal Law,” “What You Should Know: Equal Pay and the EEOC’s Proposal to Collect Pay Data,” and “Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work,” are directed at employees and physicians rather than employers. However, this guidance certainly offers a trove of helpful information that employers may rely on when necessary.
For instance, in “Legal Rights for Pregnant Workers”, the EEOC provides guidance regarding the employee’s right to an accommodation of any restrictions that may result from a pregnancy, particularly in the nature of altered break and work schedules, permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions and/or permission to work from home. However, the guidance also notes instances in which accommodations would be unreasonable and therefore, unnecessary. Being primed to discuss some of those issues as part of the interactive process and referencing the guidance’s conclusion that “the ADA doesn’t require your employer to make changes that involve significant difficulty or expense” and that “if more than one accommodation would work (to address your restrictions), the employer can choose which one to give you” may help keep the employee engaged and effective in the workplace.
The materials directed at physicians are also helpful for employers, particularly because it can easily be attached to correspondence to the physician when requesting additional information about a potential employee accommodation issue. Employers often have to follow up with physicians because an initial request for accommodation comes in the form of a note scrawled on a prescription pad, with no explanation of the condition, the reason for the accommodation, and how the accommodation will address the circumstances of the condition. The EEOC’s resource should be of assistance to employers on these issues, where it notes that documentation from a physician is most helpful where it includes:
- The nature of the patient’s condition. State the patient’s pregnancy-related medical condition.
- The patient’s functional limitations in the absence of treatment. Describe the extent to which the medical condition would limit a major life activity (e.g., lifting, bending or concentrating), or a major bodily function (e.g. bowel or circulatory functions), in the absence of treatment or any other accommodation. If the symptoms of the condition come and go or are in remission, describe the limitations during an active episode. It is sufficient to establish substantial limitation of one major life activity or major bodily function.
- The need for an accommodation. Explain how the patient’s medical condition makes changes at work necessary. For example, if your patient needs an accommodation to perform a particular job function, you should explain how the patient’s symptoms – as they actually are, with treatment – make performing the function more difficult. If necessary, ask your patient for a description of her job duties. Also explain to the employer why your patient may need an accommodation such as a schedule change (e.g., to attend a medical appointment during the workday.) Limit your discussion to the specific problems that may be helped by an accommodation.
- Suggested Accommodation(s). If you are aware of an effective accommodation, you may suggest it. Do not overstate the need for a particular accommodation in can an alternative is necessary.
This language, at least, can be cited by employers in their correspondence to physicians regarding accommodations requests to better help advance these discussions quickly.
The Pay Data guidance relates to the recent proposal to begin collecting summary pay data by gender, race and ethnicity, and again is generally directed at employees to explain their rights to equal pay and how to enforce those rights. However, the one piece of additional news for employers is that the EEOC is continuing to pursue the revision of the EEO-1 for the collection of pay data and, sometime during this summer, will be submitting revisions for a second comment period before the proposal for data collection is finalized. We will keep you posted on this initiative.