First, realize that the Act applies to employers with fifteen or more employees. However, in the health care and private provider arena, the Act and its proposed regulations may affect the ability to care for vulnerable patients and individuals. It will not apply to you if you have fewer than fifteen employees.
The PWFA expands the definition of “qualified employee” who cannot perform one or more essential job functions if the inability is for a temporary period, the function “in the near future,” and the inability can be “reasonably” accommodated. The EEOC interprets “in the near future” as 40 weeks in the proposed rules. However, in the proposed regulations, EEOC recognizes that it can be longer depending on the employee’s needs. So, the EEOC interprets that a 40-day period will restart each time the employee requests an accommodation for a related inability to perform a required job function. Employers may temporarily assign the job function to someone else.
So, the question an employer would have to answer is, can it “reasonably accommodate” an employee under these circumstances? In the next installment, we will look at what the EEOC considers reasonable accommodations and how the employer is to handle the “interactive process” as part of that.
On August 11, 2023, the EEOC published proposed regulations for the Act in the Federal Register. Comments are due within 60 days from that date. Employers are able to provide their comments on the proposed regulations electronically at http://www.regulations.gov.
