When an employee comes to you with a request for a pregnancy accommodation, your first instinct may be to reach for your Americans with Disabilities Act accommodations packet, including a medical form for the employee’s doctor to fill out that details the employee’s impairment, ability to perform the essential functions of their job, and needed accommodations. Unfortunately, that instinct could land your company in hot water.
The regulations that implement the Pregnant Workers Fairness Act provide detailed instructions for employers that want to request medical documentation to assist them in determining a reasonable accommodation for a pregnant employee. Some of the instructions differ significantly from what employers are used to.
Here are the key points you need to know, the likely PWFA violations for requiring too much information, and some practical tips.
Key Points
1) Medical documentation isn’t required. Employers may choose to ask for medical certification (in many instances) but do not have to. Sometimes employers will want medical documentation, such as when the employee’s needs aren’t readily understood and clarification from a medical professional about their limitations would be helpful to determining an appropriate accommodation. But nothing requires it.
2) Medical documentation is sometimes prohibited. Medical documentation is limited to situations in which it is reasonable, according to the PWFA regulations. The regulations state that it is not reasonable to ask for medical documentation where:
- The pregnant employee has asked for a simple accommodation that the regulations say should almost always be granted: sit or stand as needed; keep water nearby and drink as needed; take breaks as needed to use the restroom, eat, or drink; and lactation accommodations to allow the employee to pump or nurse during the workday (but employers can request documentation if the employee requests full-time remote work for pumping or nursing).
- The limitation and the need are obvious (such as a pregnant employee needing a bigger uniform).
- The employer already knows about the limitation and the needed accommodation (for example, from documentation related to a similar prior need).
- The employer makes the requested accommodation available to other employees without the need for documentation.
3) Medical documentation is limited. When it is reasonable to request medical documentation, the request itself has to be reasonable as well. The regulations state that the documentation must be “the minimum that is sufficient” to
- Confirm the employee’s limitation,
- Confirm that the limitation is related to, affected by, or arises out of pregnancy, childbirth, or related medical conditions, which includes lactation,
- State the adjustment or change at work that the employee needs, and
- Provide the expected duration of the need for accommodation.
Employers can download a sample PWFA Medical Certification form that complies with these instructions. But note: forms are optional; employers cannot require employees or their healthcare providers to fill out forms before providing accommodations.
4) No diagnosis or impairment is required. The medical form cannot ask for a diagnosis or impairment, as neither is relevant to a PWFA accommodation request. It can ask only for confirmation of the employee’s limitation, which includes symptoms and needs to prevent harm or pain, as well as physical and mental conditions that can be impairments. The interpretive guidance that accompanies the regulations gives examples of sufficient confirmation of the employee’s limitation, such as statements that the employee is experiencing fatigue, has swollen ankles, needs to avoid certain tasks, should not be exposed to a certain chemical, or needs to avoid working in the heat.
5) No recommendation of a specific reasonable accommodation is required. Medical documentation is sufficient even if the health care professional providing it does not recommend a specific accommodation. The documentation should include the “adjustment or change” the employee needs, which is satisfied by a description of the restrictions on the employee’s activity, such as no lifting over 20 pounds, no standing for more than 30 minutes, breaks every hour, and the like. The provider may choose to make a specific recommendation, such as to work from home or temporary transfer to a position that doesn’t require lifting, but the documentation should be accepted even if it does not recommend an accommodation.
6) A variety of medical practitioners can provide certifications. The medical documentation should come from a “health care provider,” which may include (but is not limited to) a doctor, midwife, nurse, nurse practitioner, physical therapist, lactation consultant, doula, occupational therapist, vocational rehabilitation specialist, therapist, industrial hygienist, licensed mental health professional, psychologist, or psychiatrist. And that’s not all. The healthcare provider completing the form does not need to be treating the employee. Any health care provider familiar enough with the employee’s circumstances may complete the documentation.
7) Medical documentation can be sufficient even if it says that the employee’s limitation is caused by something other than pregnancy. A healthcare provider might state that pregnancy has worsened the employee’s pre-existing condition or that a limitation has arisen because, due to pregnancy, the employee had to stop taking medication for a pre-existing condition. There are many scenarios in which a pregnant employee could need an accommodation under the PWFA for a limitation that is not purely pregnancy related. A request for accommodation cannot be rejected on this basis. The PWFA regulations say that an employee’s limitation “need not be caused solely, originally, or substantially by pregnancy or childbirth.”
8) Medical information must be kept confidential. The ADA requires confidentiality for employee medical information in the employer’s possession (even if not related to a disability). The information should be separate from employee files and stored in a location and manner that limits access. Information can be shared with the employee’s supervisor only to the extent necessary to provide the accommodation, and the supervisor must also treat the information as confidential. Note: An employee’s pregnancy is medical information (lactation, too) that must be kept confidential. So, too, is the fact that they have asked for or received an accommodation. All must be kept confidential.
The Perils of Requesting Too Much Documentation
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.
In addition, repeated requests for medical information when sufficient information or documentation has already been provided can give rise to a retaliation or coercion claim – even if the employee does not provide the information and even it if the employer grants the accommodation.
One final caution: claims for harassment can be made under the PWFA, where it is considered part of the prohibition on coercion. In the PWFA context, harassment means “conduct that is reasonably likely to interfere with the exercise or enjoyment of PWFA rights.” Requests for excessive documentation, permission to talk to the employee’s doctor, second opinions, examination by the employer’s doctor, and requests for entire medical files could all be considered harassment. The employee does not have to prove that they were actually deterred from using PWFA rights.
Remember, too, that the Pregnancy Discrimination Act also prohibits harassment, although its definition is a bit different.
Punitive damages are available.
Practical Tips
For simple accommodations, just provide them. If an employee asks to change their schedule by half an hour due to morning sickness or something equally minor and it isn’t hard to allow it, just say okay. It is unlikely that medical documentation would tell you anything you need to know to grant the accommodation – unless you think the employee is not being truthful about being pregnant or having a limitation.
If you already have a doctor’s note, a medical form may be overkill. Remember that if you already have the information you need, it can be considered unreasonable (and thus prohibited) to request more information. Worse, it could be considered harassment, retaliation, or coercion, depending on the circumstances.
Remember that medical documentation plays a very small role in the accommodations process. The employee doesn’t have to establish a disability or any level of severity, and chances are you already have evidence that they are pregnant and the need for accommodation may be pretty obvious, too. Once a request for accommodation is made, the focus of HR’s efforts should be working with the employee and their supervisor to determine what accommodations the employer can provide without too much difficulty or expense and whether those accommodations will meet the employee’s needs. The employee is not entitled to their first choice of accommodation (although the EEOC says that it should be considered), only to an effective accommodation. Chances are that HR has enough information to carry out this role without much medical information.
Try to provide an interim accommodation while waiting for documentation. The EEOC recommends providing interim accommodations if there will be a wait for the employer and employee to work out a reasonable accommodation – particularly if the holdup is due to waiting for medical documentation. Another reason to offer an interim accommodation: in determining whether a prohibited unnecessary delay has occurred, one of the factors to be considered is whether an interim accommodation was offered, and providing interim accommodations can reduce potential liability for retaliation.
Train your HR professionals about PWFA medical documentation. In addition to making sure they know the new procedures and finer points of the law and regulations, you may want to create a decision flowchart for handling requests and an internal manual of instructions.
