The Pregnant Workers Fairness Act changed employers’ decisions from whether an employee should be accommodated to how they should be accommodated. Almost all conditions related to pregnancy – morning sickness, back pain, fatigue, lactation, lifting restrictions, sciatica – are now entitled to accommodation. But deciding which accommodation to provide is not such a straightforward proposition.
Accommodation Basics
The purpose of accommodation is to allow the pregnant employee to continue to work safely and comfortably. Ideally, this is a win-win for the employee and employer: the employee does not have to choose between maintaining a healthy pregnancy and a paycheck, and the employer has a trained and experienced employee working productively for as much as possible.
To meet this purpose, the accommodation has to be effective. That means, according to the Equal Employment Opportunity Commission, it removes a barrier to work and provides the employee with equal employment opportunity. To illustrate, if a pregnant employee whose job requires standing is experiencing sciatica, they may need to alternate between sitting and standing throughout the day. Providing them with a chair and allowing them to sit while performing their regular job duties removes the barrier of pain and maintains their equal employment opportunity. If the same employee was reassigned to a lower-paying seated job as an accommodation, the accommodation may remove the barrier of pain but the employee would not have an equal employment opportunity.
Most employees who request an accommodation will have a specific change in mind. Their healthcare provider may have already provided a statement of the change that they need at work (e.g., no lifting over 20 pounds) or a specific accommodation (e.g., reassignment to a desk job). As with the Americans with Disabilities Act, employees are entitled to a reasonable accommodation (so long as it does not cause undue hardship to the employer), but they are not entitled to their preferred accommodation.
If an employee does not suggest an accommodation or requests an accommodation that is unreasonable or would create an undue hardship for the employer, it will be up to you to propose a reasonable accommodation that it can provide. Usually, this is done as part of an interactive process that looks much like the process that the parties use for ADA accommodation requests. The process needs to take place promptly and quickly, as unnecessary delay violates the PWFA . Employers can request documentation from the employee’s healthcare provider if it is necessary to determine an effective accommodation, but what they can request is limited.
Ideas for accommodation
Congress directed the EEOC to provide examples of reasonable accommodation for pregnancy, childbirth, and related medical conditions. Section 1636.3(i) of the regulations lists a variety of accommodations, including:
- Job restructuring (for example, removing duties that the employee cannot do)
- Reassignment to a vacant position
- Modification of uniforms
- Providing equipment to help lift or carry items
- Providing leave, paid or unpaid, for childbirth and recovery
- Telework
- Providing leave for healthcare appointments
- Light duty
In addition, the regulations https://www.ecfr.gov/current/title-29/part-1636/section-1636.3#p-1636.3(j)(4) designate several common and easy-to-provide accommodations (“predictable assessments”) that employers should provide upon request:
- Carrying or keeping water near and drink, as needed
- Additional restroom breaks, as needed
- Sitting and standing, as needed
- Breaks to eat and drink, as needed
Even more helpful are the examples in the Appendix to the PWFA regulations. This interpretive guidance provides additional information about various accommodations and then provides examples that show how particular accommodations might be used. Here are two of the many examples:
Example #26/Telework: Gabriela, a billing specialist in a doctor’s office, experiences nausea and vomiting beginning in her first trimester of pregnancy. Because the nausea makes commuting extremely difficult, Gabriela makes a verbal request to her manager stating she has nausea and vomiting due to her pregnancy and requests that she be permitted to work from home for the next 2 months so that she can avoid the difficulty of commuting. The billing work can be done from her home or in the office.
- Known limitation and request for reasonable accommodation: Gabriela’s nausea and vomiting is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Gabriela needs an adjustment or change at work due to the limitation; Gabriela has communicated the information to the employer.
- Qualified: Gabriela can perform the essential functions of the job with the reasonable accommodation of telework.
- The employer must grant the accommodation (or another reasonable accommodation) absent undue hardship.
Example #27/Temporary Suspension of an Essential Function: Nisha, a nurse assistant working in a large elder care facility, is advised in the fourth month of her pregnancy to stop lifting more than 25 pounds for the remainder of the pregnancy. One of the essential functions of the job is to assist patients in dressing, bathing, and moving from and to their beds, tasks that typically require lifting more than 25 pounds. Nisha sends an email to human resources asking that she not be required to lift more than 25 pounds for the remainder of her pregnancy and requesting a place in the established light duty program under which employees who are hurt on the job take on different duties while coworkers take on their temporarily suspended duties.
- Known limitation and request for reasonable accommodation: Nisha’s lifting restriction is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; Nisha needs an adjustment or change at work due to the limitation; Nisha has communicated that information to the employer.
- Qualified: Nisha is asking for the temporary suspension of an essential function. The suspension is temporary, and Nisha can perform the essential functions of the job “in the near future” (generally within 40 weeks). It appears that the inability to perform the function can be reasonably accommodated through its temporary suspension and Nisha’s placement in the light duty program.
- The employer must grant the reasonable accommodation of temporarily suspending the essential function (or another reasonable accommodation) absent undue hardship. As part of the temporary suspension, the employer may assign Nisha to the light duty program.
Temporary suspension of essential functions as mentioned in example 27 is an important difference between the PWFA and the ADA. Under the ADA, if an employee cannot perform the essential functions of their job after being accommodated, they can be terminated. The PWFA prohibits a similar result. It says that if a pregnant employee cannot perform their essential functions even with accommodation, the employer must temporarily suspend those essential functions if: 1) the inability is temporary (which it almost always will be in the pregnancy context); 2) the employee will be able to perform the essential functions in the near future (which the regulations say means 40 weeks, or the average length of a pregnancy); and 3) the employer can reasonably accommodate the inability. This is a real game-changer.
As a result of this provision, employers are often both providing an accommodation and suspending essential functions. It comes up most frequently when a pregnant employee requests telework and their job has some duties that have to be performed in person. In such a situation, the employer would remove the in-person duties even if they are essential functions and perhaps replace them with other duties that can be done remotely and allow the employee to work remotely.
Determining reasonable accommodations can take some creative thinking. If you need help, there are several sources of accommodation ideas. AskJAN, the Job Accommodation Network, has an extensive list of accommodations for pregnant employees on its website. The Center for WorkLife Law has compiled a detailed list of common pregnancy-related conditions and effective accommodations that is available at its Pregnant@Work website. And, of course, you can contact Cynthia here at Work+Family Insight.
Limits on Providing an Unrequested Accommodation
What if you want to provide an accommodation that is not what your employee requested? Proceed with caution!
As an initial matter, make sure that the accommodation you are offering meets the employee’s needs. One mistake we often see is the employer’s accommodation offer addressing only part of an employee’s need. To illustrate with a real-world situation: imagine you have an employee who has asked to work from home because their all-day nausea and vomiting require them to be able to lie down to rest and prevent them from being able to commute. Offering them two days of telework per week is not an effective accommodation because it gives them no accommodation for the other three days.
You must engage in an interactive process with the employee before you can offer them an accommodation they did not request. The PWFA makes it unlawful to require an employee to accept a reasonable accommodation if it was not arrived at through the interactive process. 42 U.S.C. § 2000gg-1(2).
One of the most important limits is that you cannot require the employee to take leave if there is another accommodation that would allow the employee to continue to work.
Even then, though, you are not home-free. Although you have ultimate discretion in choosing a reasonable accommodation to provide, you cannot require an employee to accept an accommodation that denies them equal employment opportunity. The EEOC has explained that this means the “opportunity to attain the same level of performance, experience the same level of benefits, or otherwise enjoy the same terms, conditions, and privileges of employment as are available to the average similarly situated employee without a known limitation, which includes the individual who needs the accommodation when they are without the known limitation.” This means that you cannot require a pregnant employee who is on the promotion track to accept reassignment to a dead-end position, take away bonuses as a condition of receiving an accommodation, or change their schedule from daytime to overnight.
Closely related to this provision, the PWFA prohibits adverse action, retaliation, harassment, and interference with statutory rights because an employee has requested or used a reasonable accommodation. Employers who require pregnant employees to take punitive accommodations may well violate these provisions as well as the Pregnancy Discrimination Act.
Some Tips
Consider granting the employee’s requested accommodation if it is possible. That takes the least effort and provides the lowest exposure to liability.
If you deny the requested accommodation, start the interactive process right away. A denial is not the end of the matter but only the beginning.
Some employers are concerned about granting accommodations that run counter to their policies (such as a request to work from home when the employer has a policy that prohibits remote work). Policies, of course, cannot override statutory rights. But you don’t have to ignore your policy if you are enforcing it even-handedly.
If creating a precedent is a concern, read this Challenge Solver.
You may want to keep a record of all accommodation requests, regardless of the reason, and how they are decided. It will help you ensure that employees are treated fairly and will give you evidence to defend against claims that non-pregnant employees have been accommodated while pregnant employees have not been.
If you are using a third-party administrator to handle accommodation requests, do not assume that they know the law and can apply it correctly. Too often, their front-line employees are unaware of the PWFA and state pregnancy accommodation laws. Also, make sure that they are aware of your philosophy when it comes to accommodation. We are aware of situations in which third-party administrators worked to deny accommodation requests when the employer’s philosophy was to accommodate pregnant employees. HR needs to play an active oversight role.
