Today’s blog entry is a twofer with respect to proposed rules that have come down from two different agencies in the last week. The first is the proposed rule for the Pregnant Workers Fairness Act. The second is the proposed rule from the FCC concerning accessibility of videoconferencing platforms. The blog entry is divided into categories of the Pregnant Workers Fairness Act proposed rule and the FCC proposed rule on video conferencing accessibility. The blog entry is really short, so you will probably want to read the whole thing.

 

I

PWFA Proposed Rule

 

Robin Shea, here, in her blog does a fabulous job of discussing the PWFA proposed rule (the proposed rule itself goes 279 pages and can be found here). I do want to add a few thoughts/points of emphasis of my own, so here goes:

 

  1. A lot of the proposed rule resembles the ADA but not entirely. For example, the concept of undue hardship and the interactive process are the same. The concept of essential functions is the same to a point. The big difference is temporary waiver of essential functions is in play, which is not the case with the ADA.
  2. Any accommodation has to be the result of the interactive process. One wonders if the EEOC will not get more aggressive on this point when it comes to disability related accommodations.
  3. PWFA focuses on known limitation related to pregnancy, childbirth, or related medical conditions (a big list is given by the EEOC and it includes infertility for example). So “known limitation,” leads you to different places than the ADA with respect to the accommodation process. Proving up “known limitation,” so to speak is going to be much easier than proving up disability, which after the amendments to the ADA should not be all that hard but is still harder than proving up “known limitation.”
  4. In the ADA world, the prohibition on excessive documentation can be a bit ambiguous. The rules are more certain on the title I side, but less clear on the title II and title III side. The latter (title II and title III),  just having a prohibition on unnecessary medical inquiries in the applicable Technical Assistance Memorandum. The proposed rule for PWFA illustrates that the EEOC is going to be really serious about looking at situations where employers seek documentation to justify an accommodation per the Pregnant Workers Fairness Act. It is not going to be simple to defend any such cases. There are a few accommodations that must be automatically granted, i.e you can’t even seek documentation when those conditions are involved. With respect to other conditions, employers are going to want to be very very careful about when they seek documentation and to be sure that the scope of the documentation the employer seeks is very limited. One has to wonder if the EEOC won’t start looking at documentation requests for accommodations under the ADA in a similar manner. If I am on the plaintiff side, I would certainly be making that argument that disability related documentation for demonstrating the need for a reasonable accommodation should operate the same way as this proposed rule does when it comes to seeking further documentation.
  5. Very interesting about how the proposed rule says that there is no confidentiality requirement. However, that isn’t the end of the story. The ADA mandates that medical information be kept confidential. Since everyone covered by the Pregnant Workers Fairness Act is also covered by the ADA, the information that comes out in the accommodation process under the Pregnant Workers Fairness Act (which is necessarily medical information), must be kept confidential per the ADA.
  6. People have until October 10, 2023, to comment on the rule in the EEOC specifically asks for comments on a bunch of things related to the proposed rule.

 

II

FCC Proposed Rule and Video Conferencing Accessibility

 

  1. The FCC proposed rule can be found here.
  2. I use video conferencing platforms all the time. In particular, I use my Bluetooth technology as well as automatic speech recognition to effectively access the videoconferencing platform.
  3. The rule seems to suggest that the FCC wants to move away from dial in access to the ability to just use the platform with captioning. I sincerely hope they don’t do that because it would be a disaster for me as a deaf person functioning entirely in the hearing world with Bluetooth technology, lip reading, and advanced hearing aids. I really do need to be able to dial in and use my Bluetooth technology to effectively access video conferencing platforms.
  4. The other thing about the rule is that I didn’t see anything that said the ASR on must be the default option. Currently, it is for Google Meets and for Microsoft teams but is not for Zoom. I can’t tell you how many times Zoom not having the ASR on as the default option has caused me problems.
  5. People have until September 6, 2023, to comment on the rule, and the FCC specifically asks for comments on a bunch of things related to the proposed rule.