I am grateful to HBR for publishing the article I wrote with Liz Morris of the Center for WorkLife Law about the Pregnant Workers Fairness Act. There is an urgent need to inform employers about the new law because many are unintentionally violating the law. The article provides necessary information and identifies the key areas where employers need to be careful.
Limits on article length meant we couldn’t cover everything. Here is a section I would have liked to have added:
What to do when there is a need for pregnancy accommodation
Once a pregnant employee (or someone associated with the employee) communicates to their employer that they have a pregnancy-related limitation, the employer becomes obligated to provide them with a reasonable accommodation so long as it does not create an undue hardship. (As we explain in the article, a limitation is a health need such as pregnancy symptoms, a physical or mental condition, the need to alleviate pain, time off for medical appointments, and the need to avoid risks. Undue hardship means significant difficulty or expense.)
This is different from the Americans with Disabilities Act, even though the PWFA was modeled on the ADA. Under the ADA, the employer gathers information from the employee and the employee’s healthcare provider and makes a determination whether the employee has a disability as defined by the law such that the employee is entitled to an accommodation. There is no such determination to make under the PWFA. No disability or level of severity need be shown. If there is a need and it is related to pregnancy, childbirth, or a related medical condition, then all boxes are checked and the employee is entitled to a reasonable accommodation.
If the requested accommodation is something that the employer can provide easily, it should just do so. The interpretive guidance to the PWFA regulations says that ordinarily, the process for requesting and providing an accommodation will be just a short conversation between employer and employee. The regulations provide a list of simple accommodations that should almost never create an undue hardship and that should be granted without any need for further process or medical documentation: 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.
Sometimes accommodation requests are not simple enough to grant on the spot. In that case, the employer and employee are supposed to engage in an interactive process.
The interactive process is intended to be a flexible, informal process with no prescribed steps. No request forms need to be used, and if the employer chooses to ask the employee to complete a request form so there is a record of the request (see our sample form), the employer cannot wait for the form to be completed before providing an accommodation and cannot deny an accommodation if a request form is not filled out.
If the employee’s limitation is not obvious and the employer needs more information to engage in the interactive process, the employer can confirm with the employee’s healthcare provider that the employee has the limitation, the limitation is related to pregnancy, childbirth, or a related medical condition, and a change is needed in how, where, or when the employee works. The employer can also ask the anticipated duration of the needed change. That is it. No long, detailed medical certification forms are required – or even allowed. (See our sample form.) The employer cannot talk to the employee’s healthcare provider or require the employee to be examined by a healthcare provider chosen by the employer.
The interactive process is a time to think creatively about how work gets done. Job restructuring is one way to be creative. Certain job duties that the employee cannot do can be temporarily suspended or reassigned to another employee and other duties that the employee can do can be swapped in. This should be considered even if the employee can’t do the essential functions of their job. The PWFA requires that even essential functions be temporarily suspended so long as the employee will be able to perform them again in the near future (defined as up to 40 weeks in the case of pregnancy) and the suspension can be reasonably accommodated.
Sometimes more than one accommodation is required. For example, if the employee needs to work from home as an accommodation, some job duties may need to be reassigned if they cannot be done remotely or the employee can be temporarily reassigned to another position that can be done remotely.
The employer should not simply deny the requested accommodation and think that the issue is over. If the requested accommodation is not possible or would create an undue hardship, the employer should suggest effective alternatives that it can provide that will allow the employee to continue to work safely and comfortably.
This process should proceed quickly, particularly because pregnancy limitations can be urgent with catastrophic consequences if not addressed. Employers may be used to taking two or more weeks to resolve an ADA accommodation request. For a PWFA request, employers should aim for a resolution in only a matter of days.
If it is going to take longer than that, it is a good idea to provide an interim accommodation while the process plays out. As we have explained elsewhere, unnecessary delay violates the PWFA and providing interim accommodations can help the employer defend itself against a delay claim.
One other post-script that I might have added: it may seem that the PWFA is imposing a lot of rules, but it isn’t all bad. Most of the rules are streamlining the process of providing accommodations and making it easier for employers by eliminating the guesswork.
Do your policies need to be revised to incorporate the Pregnant Workers Fairness Act? Does your organization need training or help setting up new procedures? Contact us to see how we can help.