3 PWFA Mistakes Employers Are Already Making – and How to Fix Them

The Pregnant Workers Fairness Act hasn’t been in effect for even a year, but already employees are taking legal action alleging that their employers are not in compliance. Three areas that are giving some employers particular trouble arise because they are treating the PWFA accommodation requests like requests made under the Americans with Disabilities Act. The issues and solutions:

1) Requiring ADA paperwork.

Many employers mistakenly assume that they’re fine if they respond to an employee’s request for pregnancy accommodation by giving the employee the same accommodation and medical certification forms that they use for requests under the ADA.

Although the PWFA is modeled on the ADA, the information relevant to accommodation is different under each law. A pregnant employee does not have to show that they have a disability to be entitled to an accommodation, which means that questions related to impairments, major life activities and major bodily functions, and essential functions are unnecessary. By contrast, the only information that is relevant to a PWFA accommodation request is:

1. Confirmation of the employee’s limitation, which does not have to be a diagnosis but rather can be a statement of the employee’s physical or mental condition, or a need or problem the employee is having,
2. Confirmation that the limitation is related to, affected by, or arises out of pregnancy, childbirth, or related medical conditions, which includes lactation,
3. A statement of the adjustment or change at work that the employee needs, which can, but does not have to, include a recommendation of a reasonable accommodation, and
4. The expected duration of the need for accommodation.

More information about medical certification, including the four situations in which  medical certification cannot be required, is available on our website. (free registration required).

So what if employers ask for a little extra information? Unfortunately, it can be a big deal. The EEOC advises that requesting completion of burdensome or unnecessary forms can be retaliation and coercion under the PWFA because it may discourage an employee from seeking accommodations or punish them for doing so. Punitive damages are available.

Employers can download a sample PWFA Accommodation Request form and a sample PWFA Medical Certification form from our website (free registration required).

2) Taking too long to determine accommodations.

Most employers have a process for handling ADA accommodation requests, and it usually takes at least a week or two for the process to run its course – although employees have complained of much longer delays. Requests for pregnancy accommodations often can’t wait that long.

Unnecessary delay in providing accommodations can be a failure to accommodate, even if the accommodation is eventually provided.

So how long is too long? The EEOC provides a list of factors to be considered:

• the reason for and length of the delay,
• whether the accommodation was needed for just a short time so that the delay amounted to a denial,
• how much each party contributed to the delay and whether the employer was working on providing the accommodation,
• whether it would have been easy for the employer to have just provided the accommodation, and
• whether the employer offered an interim accommodation that allows the employee to continue working (more below).

The first solution is obvious: try to handle pregnancy accommodation requests expeditiously. Many common accommodations – such as a stool to sit on, rest and bathroom breaks – are easy to provide and medical documentation is not permitted, so the accommodations can be agreed to as soon as they are requested.

The second is to provide interim accommodations if it is going to take any amount of time to determine what accommodation the employer can reasonably provide. Interim accommodations are temporary changes to how or where or when work gets done that will allow the employee to work safely while the employee and employer engage in the interactive process to determine the actual accommodation. The EEOC has noted that this is a best practice and that employers may be able to avoid exposure to liability for unnecessary delay if they have provided interim accommodations. Note that leave cannot be an interim accommodation unless the employee requests it.

3) Not suspending essential functions during pregnancy.

The concept of “essential functions” under the ADA is well known: in order to qualify for an accommodation, an employee must be able to perform the essential functions of their job with or without accommodation. The PWFA is different, to the surprise of some employers. If an employee with a pregnancy-related limitation cannot do the essential functions of their job, they may still qualify for accommodation.

The essential functions of their job must be temporarily suspended if three conditions are met:

• the inability is temporary,
• the employee will be able to do the essential functions in the near future (which means within 40 weeks, for pregnant employees), and
• the inability can be reasonably accommodated.

So if a pregnant employee’s essential functions include lifting and they cannot lift even with an accommodation, the lifting tasks must be removed from their job during pregnancy if the employer can reasonably accommodate the change.

The solution involves some creativity. Tasks may need to be swapped between employees so the non-pregnant employee does all the lifting and the pregnant employee does all the paperwork. Or the employee with a lifting restriction may need to be temporarily reassigned to another position or given light duty. This decision should be made with the employee as part of an informal, interactive process to avoid any problems down the road.

Learning from others’ mistakes – that’s a good way to learn.