What to know when an employee asks for a Pregnant Workers Fairness Act accommodation

The Pregnant Workers Fairness Act (PWFA) was launched on June 29, 2023, to help ensure that leaves and/or accommodations were provided to employees when they were not qualified or eligible for any other leave or accommodation laws (ADA, FMLA, state leave, company defined leaves, etc.). Effective June 18, 2024, the EEOC finalized PWFA regulations which will impact how we administer it.

What is PWFA?

PWFA requires a covered employer (15 or more employees) to provide a reasonable accommodation to qualified employees or applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (“PWFA limitation”). The PWFA does not replace the ADA or any other federal, state, or municipal laws. Because some PWFA limitations do not rise to the level of a disability under the ADA, the PWFA was designed to fill the gap by providing reasonable accommodations to employees with PWFA limitations.

What do employers need to know?

1. An employee with a PWFA limitation may make an oral or written request for an accommodation generally or specify a preferred accommodation. To determine if there is one or more reasonable accommodations, which are not an undue hardship, the employee and the employer participate in an interactive process.

2. The required interactive process can be as simple as notice of a PWFA limitation, a proposed reasonable accommodation and its acceptance, or it can be a longer discussion to identify one or more reasonable accommodations, mitigate undue hardships, and create an implementation plan that may involve an interim accommodation.

3. The offered alternative reasonable accommodation may differ from the employee’s proposed reasonable accommodation. Although the employer may choose from among any reasonable accommodations, they should consider the employee’s preference.

4. Immediate approval or interim accommodation may be necessary as undue delay could interfere with the employee’s right to PWFA accommodation. Factors for whether a delay is unreasonable are discussed below. An interim accommodation could be appropriate if there’s an extended interactive process or time is needed to implement the reasonable accommodation or there are issues around applicability of the PWFA.

5. Accommodations can be described as:

a. “Predictable” accommodations, these are predictably related to pregnancy and include accommodations such as drinking, standing, sitting, consuming food while working, and taking rest breaks as needed. These accommodations are to be approved without delay during the interactive process unless there’s an undue hardship.

b. “Obvious” accommodations, these are ones that can be anticipated based on the employee’s condition and occupation, and include maternity uniforms, time for prenatal care, and adjusted work schedule to account for morning sickness. Obvious accommodations shall also be approved without delay unless there’s undue hardship or an alternative reasonable accommodation is provided.

c. “Non-obvious” accommodations, these need more information regarding the scope, duration, or applicability of the PWFA to the accommodation. They may also include an undue hardship. These may include the temporary suspension of an essential duty of the employee’s job, reassignment, or the installation of adaptive equipment.

6. A self report by the employee of their physical or mental condition and the adjustment needed due to their PWFA limitation may be sufficient support for a PWFA accommodation.

7. Supporting documentation may be required by an employer only if reasonable under the circumstances. Supporting documentation should not be required for:

a. Predictable or obvious accommodations.

b. Information that is known to the employer. Guardian seeks information from the employer regarding accommodations and supports the reporting and tracking of approved obvious and predictable accommodation to support compliance with regulatory restrictions on requesting known information.

c. Time for pumping or nursing activities at work because lactation beginning around or shortly after birth is an obvious fact.

d. Accommodations available to other employees without documentation (e.g., the employer’s policy allows three sick days without a doctor’s note).

8. An interim accommodation is appropriate to prevent delaying an accommodation until the implementation of the reasonable accommodation is completed (i.e., obtaining adaptive equipment), or while a non-obvious accommodation is assessed for issues such as whether the limitation is a PWFA limitation or if the duration or scope of the limitation is supported.

9. Undue hardship where there is no other reasonable accommodation is the only excuse for failing to provide a reasonable accommodation for a qualified employee with a PWFA limitation. The employer does not violate the PWFA, even if it fails to engage in the interactive process, if there is no reasonable accommodation available without an undue hardship. However, if only part of the proposed accommodation is an undue hardship, for example, a work from home or reduced work schedule for two months rather than six months, or providing adaptive equipment rather than eliminating lifting, then the employer must still provide the reasonable accommodations that are not an undue hardship.

10. Determining an undue hardship requires an individualized assessment of whether the accommodation causes significant difficulty or expense to the employer in light of certain factors:

a. The nature and net cost of the needed PWFA accommodation;

b. The financial resources of the facility or facilities providing the accommodation, and the number of persons employed there, and the effect on those financial resources and persons;

c. The overall financial resources of the covered employer, the number of employees, and the number, types, and locations of its facilities;

d. The type of operations of the employer, including composition, structure, and function of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facilities involved; and

e. The impact of the accommodation on the operation of the facility, including its ability to conduct business and the ability of other employees to perform their duties.

11. If the accommodation is a suspension of an essential function, the duration of the suspension is another factor in the undue hardship assessment; e.g., the essential function may be able to be postponed or other employees cover for a short period of disruption, but a longer period may have an unreasonable effect on the ability of the employer to conduct business and other employees to perform their duties. Generally, the suspension of an essential function is temporary.