HR Tip: Updated guidance on hearing disabilities, telework, opinion letter on intermittent leave, and new laws related to pregnant and lactating workers

EEOC guidance on hearing disabilities

New guidance indicates employers can ask job applicants whether they can perform the job’s essential functions but not whether they use a hearing aid. Issues covered in the guidance include how certain pre- and post-job offer disability-related questions can violate the ADA, free or low-cost technologies that can provide a reasonable accommodation for a hearing disability, and employer concerns about safety.

Department of Labor guidance on teleworkers

The Department of Labor issued guidance to employers on how to comply with the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) for employees who telework. Issues covered related to FLSA include counting breaks of 20 minutes or less as work and providing for “bona fide” meal breaks. It also reminds employers they must provide breaks for nursing employees.

For FMLA, the guidance clarifies that employees who telework are eligible for FMLA leave on the same basis as employees who report to any other worksite to perform their job. When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility is the office to which they report or from which their assignments are made. The count of employees within 75 miles of a worksite includes employees who telework and report to or receive assignments from that worksite.

DOL opinion letter addresses FMLA leave allowing reduced work hours for employees with a chronic health condition

A new opinion letter addresses whether an employee who normally works more than eight hours a day but cannot because of a chronic serious health condition is entitled to indefinite intermittent leave under the FMLA. The guidance explains that an employee with a health condition that necessitates reduced hours can use FMLA leave until their leave is exhausted. The letter also explains that FMLA leave is in addition to and distinct from employee protections provided under other laws, including the Americans with Disabilities Act (ADA).

Protections for pregnant and lactating workers expanded

Two federal laws with rare bipartisan support expand protections for workers who are not covered by similar state laws. The laws do not preempt state law or municipal ordinances that provide greater protection.

The Pregnant Workers Fairness Act (PWFA), which goes into effect June 27, requires employers with at least 15 employees to provide reasonable, temporary accommodations to pregnant employees with limitations related to pregnancy, childbirth, and related medical conditions. Previously, employers were only obligated to accommodate pregnant workers whose conditions could be considered a disability.

The PWFA adopts the same meaning of “reasonable accommodation” and “undue hardship” as used in the ADA, including the interactive process to determine an appropriate reasonable accommodation. Unlike the ADA, pregnant workers who are unable to perform the essential functions of a job (such as heavy lifting) are protected under the PWFA, since the accommodations are temporary.

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP), which took immediate effect, requires employers with at least 50 employees to provide lactating facilities that are not a bathroom, and reasonable break times.The break time may be unpaid unless required by other laws and it applies to all employees, not just non-exempt employees. Employers should ensure that non-exempt nursing employees are paid if they express breast milk during a paid break or if they are not completely relieved of duty for the entire break. The law also strengthens enforcement provisions.

Employer action

Employers should review and update reasonable accommodation policies, designate private spaces for nursing mothers to express breast milk, and educate the HR team and front-line managers on the new guidance and laws.