Answering Employers’ Questions about PWFA Questions

Jun 4, 2024

I just listened to a very good webinar by Constangy’s Brooke Nixon about the Pregnant Workers Fairness Act. Participants submitted many thoughtful questions. I’m going to expand on Nixon’s answers to some of them here.

Q: When can medical documentation be requested and what can be requested?

We recently provided an in-depth answer to this question.

Q: If an employer complies with the PUMP Act, has the employer complied with the PWFA?

A: Not necessarily. Both laws require employers to provide reasonable break time for employees to express breast milk and a private, non-bathroom space to use to do so. There are other similarities as well: both laws require breaks to be provided on an as-needed basis and to be as long as reasonably necessary, both prohibit retaliation and thus require adjustment of performance metrics to reflect time spent pumping, and neither allows an employer to require medical documentation for breaks.

But the PWFA goes further. Reasonable accommodations for lactation can include schedule changes, relief from mandatory overtime and overnight travel, permission to leave work to nurse the employee’s child if the child is nearby, time off for lactation-related medical appointments, leave due to breast infections, and remote work for employees who cannot pump. Whether any of these accommodations would be reasonable will depend on the needs of the particular employee. Although an employer cannot require medical documentation for break and space accommodations, it may be able to ask for documentation when the requested accommodation is leave or remote work.

The PWFA also goes further than the PUMP Act in that its coverage is not limited to the first 12 months of the employee’s child’s life.

Q: Can an employer limit leave as a reasonable accommodation to 12 weeks?

A: No. The PWFA and its implementing regulations and interpretive guidance do not contain a time limit for leave. As Nixon explained, PWFA accommodation requests have to be resolved on a case-by-case basis. An employer can ask the employee’s healthcare provider for an estimate of the length of leave the employee will need, but if the employee needs more than 12 weeks of leave, the employer cannot deny the leave based on length alone.

Q: What about work from home as a reasonable accommodation when the employee does not have a work-from-home position?

A: We are frequently asked about this. As we learned during the pandemic, many more jobs can be done remotely than was previously thought. But let’s say that an employee has a job that cannot be done remotely, such as a receptionist who needs to be able to greet visitors as well as answer the phone and maintain building use schedules. The employee is still entitled to a reasonable accommodation – remember that if the requested accommodation cannot be provided, the employer cannot just deny the request but rather must engage in the interactive process with the employee to find an accommodation that it can provide.

If remote work is the only way to meet the employee’s needs, the employer can consider a temporary transfer to a position that can be done remotely. The position should be one that the employee is qualified for or can be trained to do (for example, a transfer to a billing clerk position that can be done online).

The employer could also consider temporarily suspending the employee’s job duties that cannot be done remotely, such as assigning visitor greeting to another employee and having the receptionist answer phones and maintain schedules while working from home. The PWFA requires that even essential functions be suspended so long as the employee will be able to perform them in the near future (defined as up to 40 weeks in the case of pregnancy) and the employee’s temporary inability to do the essential functions can be reasonably accommodated.

Caveat: It is important to work with the employee to find an effective and reasonable accommodation. The PWFA prohibits requiring an employee to accept an accommodation that was not arrived at through an interactive process with the employee.

Do you have more questions? Cynthia can provide you with quick, low-cost answers.

© Cynthia Thomas Calvert.

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