Article By: Associate Attorney Joe Benavides
On June 27, 2023, the Pregnant Worker’s Fairness Act (“PWFA”) became law. The PWFA requires employers with 15 or more employees to reasonably accommodate employees with known limitations arising out of their pregnancy, childbirth, or other medical conditions. Finally, on April 15, 2024, nearly a year later, the EEOC issued its long-awaited Final Rule detailing how the PWFA will be enforced and to assist employers with compliance.
Building on the Americans with Disabilities Act (“ADA”), the PWFA was enacted to provide broader protections to not only pregnant employees, but employees with known limitations (physical or mental conditions) related to their past pregnancy, potential pregnancy, lactation, use of birth control, fertility treatments, menstruation, ante- and post-partum anxiety or depression, miscarriage, stillbirth, abortion, as well as other conditions.
Covered employers are responsible for engaging in the interactive process as soon an employee communicates their request for a reasonable accommodation due to their known limitation. However, unlike the ADA, these requests can stem from modest, minor, and/or episodic limitations, such as morning sickness or migraines, and do not need to meet the definition of “disability.”
Time-Off for Qualified Employees
Another significant contrast between the PWFA and the ADA is the definition of “qualified employee.” The PWFA broadens the definition of qualified employee to include an employee or applicant, even if they cannot perform one or more essential functions of the job, if (a) the inability to perform the essential functions is “temporary,” (b) the essential functions could be performed “in the near future,” and (c) the inability to perform the essential functions “can be reasonably accommodated.” The EEOC commented that “in the near future” means the essential functions of the job may be resumed within forty (40) weeks.
Types of Accommodations
Employers should be aware that requests for accommodation will vary on a case-by-case basis. A reasonable accommodation generally means a change in the work environment or how things are usually done. The final rule provides specific examples of possible reasonable accommodations under the PWFA, including frequent breaks; sitting/standing; schedule changes, part-time work, and paid and unpaid leave; telework; parking; light duty; job restructuring; temporarily suspending one or more essential functions; and acquiring or modifying equipment, uniforms, or devices.
Additionally, employers are prohibited from requiring qualified employees to take a leave of absence, paid or unpaid, if another reasonable accommodation can be provided that would allow the employee to continue to work.
Asking for Supporting Documentation
A covered entity is not required to seek supporting documentation. In fact, the EEOC is imploring employers not to use any ADA or FMLA forms when engaging in the interactive process. However, employers may seek documentation from an employee who is requesting an accommodation “when it is reasonable under the circumstances for the covered entity to determine whether the employee has a known limitation related to, affected by, arising out of pregnancy, childbirth, or related medical condition.”
According to the EEOC’s final regulations, employers who choose to require documentation must grant interim accommodations if an employee indicates that they have tried to obtain documentation but there is a delay in obtaining it, and the documentation will be provided at a later date. Furthermore, there are instances where it is not reasonable for the employer to require documentation, such as when the limitation is “obvious” (i.e., 7 months pregnant), requests for pumping, eating, drinking, standing, sitting, etc. Lastly, remember to keep all medical information gathered from your employees confidential.
Undue Hardship
Could a suspension of your employees’ job duties cause your entity undue hardship? There’s only one way to find out. Engaging in the interactive process is necessary following each request for accommodation. To establish an undue hardship, an employer must show significant difficulty or expense in providing accommodation. However, there are multiple factors for covered employers to analyze before legitimately denying an accommodation due to undue hardship, such as the nature of the essential function and its frequency; whether there is work for the employee to accomplish; whether the essential functions may be postponed; whether the employer has provided other employees in similar positions with temporary suspensions of their functions; etc.
If you are an employer with more than 15 employees, we recommend that you create policies and procedures for receiving and assessing requests for accommodations from your employees to ensure compliance with the PWFA.
