Since the early 1990s, the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) have served as the two primary federal workplace accommodation and leave laws. In 2023, the Pregnant Workers Fairness Act (PWFA) broke new ground by filling gaps not covered under existing protections. The PWFA requires employers with 15 or more employees to evaluate accommodation requests for “known limitations” related to pregnancy, childbirth or related medical conditions similar to the way an employer would evaluate accommodation requests related to disabilities under the ADA.
However, the PWFA diverges from the familiar ADA and FMLA framework in a few ways. Manufacturing employers, in particular, should be proactive in thinking about how to comply with the PWFA since requests may be more frequent with physically demanding work, and the new law increases the burden on employers to accommodate pregnant employees. This article highlights a few PWFA nuances and strategies for compliance.
Suspension of Job Duties
A significant difference from the ADA is that the PWFA requires employers to relieve covered employees from essential job duties as a reasonable accommodation — unless doing so would impose an undue hardship. Examples of reasonable accommodation for the temporary suspension of one or more essential job duties include: 1) the employee continues to perform the remaining functions of the job; or 2) the employee is assigned other tasks in place of the suspended functions; or 3) the employee is temporarily transferred to another position or assigned light duty work.
Reasonable Documentation
In its final rule implementing the PWFA, the U.S. Equal Employment Opportunity Commission went to unusual lengths to limit the ability of employers to obtain medical documentation when an employee requests a pregnancy accommodation. Contrary to the ADA’s more expansive approach, requests for supporting documentation under the PWFA are allowed only if it is “reasonable under the circumstances” to determine whether the employee has a qualifying limitation and needs an adjustment or change at work due to such limitation. Moreover, employers are prohibited from requiring an employee to be examined by a health-care provider of the employer’s choosing, even in a situation where it would be permitted under the ADA.
Thus, employers should not use their typical ADA request form in a pregnancy accommodation situation. The final rule limits “reasonable documentation” to the minimum documentation that is sufficient to confirm, confirm and describe: 1) confirm the physical or mental condition; 2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and 3) describe the change or adjustment at work needed due to the limitation. Employers also may seek an estimate of the expected duration of the modification.
Leave as an Accommodation
A leave of absence can be a reasonable accommodation under the PWFA. Even so, the PWFA makes clear that leave is the accommodation of last resort. Thus, employers should exhaust all reasonable efforts to keep the employee in their current position or in a temporarily reassigned position.
If an employee limited by pregnancy is specifically seeking leave, or if leave is the only option available, it is acceptable to use the Department of Labor’s or the employer’s standard FMLA medical certification form (assuming the employer is covered by the FMLA, and the employee is FMLA eligible). If the employee returns the FMLA medical certification, the employer can then make an FMLA and pregnancy accommodation decision based on the FMLA documentation.
What Should Employers Do? Employers are encouraged to think proactively about the types of accommodations they reasonably can provide now rather than waiting for the first PWFA request. While much of the PWFA is similar to the ADA and the FMLA, the PWFA and its final rule contain statutory terms, definitions and guidance that are unique. Human resource personnel, supervisors and managers should become familiar with the PWFA to ensure compliance.
For more information or training regarding the Pregnant Workers Fairness Act, contact Attorney Lauren Sala 814/870-7605 or email lsala@mijb.com.
Lauren Holler Sala is a labor and employment attorney at MacDonald Illig where she helps a variety of public, private and nonprofit employers develop mutually beneficial labor relations with employees.
