Employees with pregnancy-related medical conditions are now eligible for workplace accommodations—here’s how employers can ensure compliance.
By Maggie Mancini
Pregnant workers may be eligible for additional workplace protections under the recently enacted Pregnant Workers Fairness Act (PWFA). The final rule, which went into effect on June 18, enables employees who have a known physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or a related medical condition to receive reasonable accommodations in their workplace so long as it does not pose an undue hardship on their employer.
Previous employment law concerning pregnant women in the workplace had its share of differences, says Katie Brown, partner at Fisher Broyles. She explains that under the Americans with Disabilities Act (ADA), pregnancy-related medical conditions that qualified as a “disability” would require employers to provide accommodations to employees. Prior to the PWFA going into effect, pregnancy itself was not considered a condition requiring accommodations. Now, even employees with pregnancy-related conditions that are not disabling could qualify for accommodations under the law.
The rule generally applies to all public and private employers with 15 or more employees; unions; employment agencies; and the federal government. Employers are now required to provide qualified employees with accommodations and additional protections, Brown says. For example, covered employers may not require an employee to take leave if another accommodation can be provided. Covered employers are barred from denying employment opportunities to qualified employees due to their need for accommodation. The PWFA also prohibits employers from retaliating against employees who request accommodation.
Brown says that employers covered by the PWFA should work to implement internal procedures within their HR team to streamline notices and accommodation processes for pregnant employees.
“The first step is to recognize when the act is triggered,” she says. “It is critical to note that for the physical or mental condition to be ‘known’ under the PWFA, the employee or a representative of the employee must have communicated the limitation to their employer. The limitations may be an episodic impediment or problem, a need related to maintaining the health of the employee or pregnancy, or even needing to seek medical care related to the pregnancy, childbirth, or other related condition.”
Once the PWFA has been triggered, Brown says it’s important to determine whether the employee qualifies for accommodations. Much like the ADA, the PWFA defines a qualified employee as someone who can perform the “essential functions” of their job with or without accommodations. The new rule expands this definition slightly to include employees who cannot perform one or more of the essential responsibilities if:
- their inability is temporary;
- if they will be able to fulfill the responsibilities in the near future; or
- if the inability can be accommodated.
“When evaluating whether an employee meets this expanded definition, the key timeline to consider for a pregnant employee is whether they will be able to perform the essential functions within generally 40 weeks from when the inability to perform the function began,” Brown says. “When the employee is not pregnant, the timeline is determined on a case-by-case basis.”
If the limitation is for less than 40 weeks, the evaluation becomes more about whether the inability to perform can be accommodated. Accommodation could include temporarily reassigning the job function to another employee, providing frequent breaks, schedule changes, light duty work, or remote work, Brown says. In some cases, modifying facilities or restructuring the job could be seen as reasonable.
As with any nationwide change in employment law, HR leaders must be prepared to address challenges associated with the change and avoid compliance risk. Brown explains that the challenges expected to arise will likely mirror the struggles that employers currently face with implementing the ADA—determining which accommodations are reasonable.
In determining whether an accommodation poses an undue hardship on the employer, several factors must be considered, Brown says. These include:
- the length of time that the employee is unable to perform the essential functions of their job;
- whether there is separate work for the employee to complete;
- the nature of the employee’s job responsibilities, including the frequency of their tasks;
- whether the employer has previously provided employees with temporary suspensions of these essential job functions;
- whether there are other employees who can be temporarily hired or tasked with performing the essential functions; and
- whether the essential job functions can be postponed or remained unperformed for any amount of time.
“With the ADA, there are several guardrails within which employers can generally draw a bright-line rule,” Brown says. “For example, indefinite leaves of absence are not considered reasonable. With a schedule or shift change that would require other employees to absorb responsibilities in a way that keeps them from completing their own tasks, then the schedule or shift change may present an undue hardship.”
The challenges will be in identifying similar guardrails to process accommodation requests under the PWFA consistently and in compliance with the new legal requirements, Brown says.
Brown recommends that organizational leaders consider the following when working to educate and address the PWFA.
- Train leadership teams on the process for communicating known conditions related to pregnancy and childbirth. When conditions are known, employers should have a clear process for identifying the accommodation being requested, engaging in the interactive process to determine whether the accommodation is reasonable, and determining whether it will present an undue hardship on business operations, Brown explains.
- Be ready to require employee documentation to support accommodation requests. Employers must be prepared to provide the minimum documentation needed to confirm the physical or mental condition, confirm any additional medical conditions, and describe the adjustment needed at work due to those limitations. Brown adds that there are some limitations on when employers are not permitted to require documentation, such as when limitations are obvious.
- Prepare before accommodation requests are made to avoid compliance risks. Inadvertent violations of the PWFA may result from unnecessary delays in making accommodations, failing to maintain confidentiality as required by the PWFA, not providing mandated paid or unpaid leave if different accommodation is effective, or denying benefits that are available to employees without a known limitation in similar circumstances, she says.
