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Minding Employer Obligations Under the Pregnant Workers Fairness Act
ADRIANA RODRIGUEZ
WALSH GALLEGOS KYLE, ROBINSON & ROALSON, P.C.
Most school district HR professionals know about the requirement to provide reasonable accommodations under the Americans with Disabilities Act (ADA). A lesser-known law, the Pregnant Workers Fairness Act (PWFA), creates similar but unique employer obligations. Since June 2023, the PWFA has required an employer with 15 or more employees to provide reasonable accommodations to a qualified employee or applicant’s known limitation that is related to, affected by, or arising out of the employee’s pregnancy, childbirth, or related medical conditions. 1 Though both the PWFA and the ADA involve reasonable accommodations, there are significant differences between the two federal laws.
Known Limitation
1 42 U.S.C. § 2000gg.
2 42 U.S.C. § 12102.
The ADA requires accommodation when an employee has a physical or mental impairment that substantially limits one or more major life activities .2 A “known limitation” under the PWFA is not the same. Under the PWFA, a “limitation” means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. “Known” means that the employee or applicant has communicated to the employer about the limitation.3
The PWFA protects an employee who is temporarily unable to perform an essential job function.4 Further, the PWFA does not require employers to determine whether the individual is qualified to perform the essential functions of the job during the period of the known limitation.5 Instead, the PWFA covers employees and applicants who will be able to perform the essential functions of their job in the “near future,” but who need a reasonable accommodation in the interim.6 For example, the PWFA would cover a pregnant administrator’s request to temporarily suspend outside lunch duty during the final month of her pregnancy.
3 https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act, No. 12.
Reasonable Accommodation
Under the PWFA, the employee’s need for accommodation does not have to be solely caused by pregnancy, childbirth, or a related medical condition.7 Medical conditions exacerbated by pregnancy include chronic migraine headaches, nausea or vomiting, high blood pressure, incontinence, and carpal tunnel syndrome.8For example, a pregnant custodian might request light duty if she cannot carry more than twenty pounds as a result of a musculoskeletal disorder exacerbated by physical changes during pregnancy. Another example might be a school counselor who requests leave to attend appointments for invitro fertilization treatment related to infertility.
4 Employers do not have to accommodate the partner, spouse, or family member of an employee with the “known limitation. See 29 CFR § 1636.3(a)(2).
5 42 U.S.C. § 12111(8).
6 42 U.S.C. § 2000gg (6). The EEOC emphasizes that the definition in 29 CFR § 1636.3(f)(2)(ii) does not mean that the “essential function” must always be suspended for 40 weeks, or that if an employee seeks the “temporary” suspension of an “essential function” for 40 weeks the employer must automatically grant it.
7 29 CFR § Appendix A, Interpretive Guidance on the Pregnant Workers Fairness Act. No. 8.
8 29 CFR § 1636.3(b).
As with the ADA, requesting an accommodation under the PWFA should be a simple, straightforward process.9 Employees do not need to use specific words or phrases. Though the employee might make their request verbally, employers should document the request or ask the employee to make a written submission.
Note that any communication, no matter how informal, may create an employer obligation to engage in an interactive process with the employee.10 Similar to the ADA, in the PWFA interactive process the employer and employee must communicate about the known limitation and the adjustment or change needed at work. For example, employees who request a delayed start because of morning sickness, access to water, or frequent breaks to sit, stand, eat, or use the bathroom may be communicating their known limitation and requesting a reasonable accommodation.
A reasonable accommodation includes modifications or adjustments to the job application process or work environment that would allow the employee equal access to the benefits and privileges of employment.11 Here are some examples of common reasonable accommodations under the PWFA: closer parking spaces; modified dress code or uniforms; elevator access; stools or chairs at a standing work station; rolling carts to carry supplies; restrictions on lifting, climbing, and physical force; reassignment to avoid exposure to dangerous chemicals; and leave.12 The PWFA also covers accommodations related to lactation, including breaks to pump or nurse as needed.
It is unlawful to deny a qualified employee an employment opportunity based on the need to provide a reasonable accommodation.13 Further, an employee is not required to accept an accommodation outside of the interactive process, nor can an employer force an employee with a pregnancy-related condition to take leave if another reasonable accommodation can be provided.14
Undue Hardship
Under the PWFA, [so2] an employer has an obligation to engage in an interactive process and provide a reasonable accommodation unless the accommodation would create an undue hardship for the employer.15 This is similar to the ADA. Factors to be considered in determining whether an accommodation would pose an undue hardship include: the nature and net cost of the accommodation; the financial resources and size of the employer; as well as the impact of the accommodation on the employer’s operations, including the ability of other employees to perform their duties.16
Suppose an elementary school teacher in a small district requests leave to attend medical appointments every other day and asks to work from home after each appointment. For a small district, finding a substitute to cover the teacher’s classroom every other day might be an undue hardship if it impacts the district’s operations. Nonetheless, the district should offer a reasonable, temporary accommodation, such as a delayed start, so that the teacher can attend those appointments at the beginning of the day and arrange for morning coverage on a temporary basis.
Supporting Documention
Employers may request reasonable documentation to confirm that an employee’s requested accommodation is needed because of a physical or mental condition that is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.17 The employer’s request must be limited to the minimum supporting documentation necessary; the PWFA prohibits requiring that pregnancy or a related condition be confirmed through a specific test. Medical certification or documentation is not necessary when the employee requesting the accommodation is obviously pregnant or “self-confirms” that the request is related to the limitation. For less obvious conditions, like postpartum depression, documentation may be helpful.
Depending on the requested accommodation, employers may ask that employees provide medical documentation from doctors, nurses, midwives, or doulas, physical or occupational therapists, lactation consultants and/or mental health professionals.18 For example, if an employee with pre-eclampsia requests an accommodation for bedrest for the last month of her pregnancy, an employer may ask for a note from the employee’s midwife that explains the need to limit the employee’s activity during this time.
CONFIDENTIALITY & DISCLOSURE
Like the ADA, the PWFA includes a duty of confidentiality. It is unlawful for an employer to disclose that an employee is receiving or requesting a reasonable accommodation as doing so amounts to a disclosure that the employee is pregnant, has recently been pregnant, or has a related medical condition.
Takeways
The PWFA affords employees significant workplace protections related to pregnancy[so5] . Districts should know about their obligations under this law as well as other federal statutes that cover pregnancy and related conditions, including the Pregnancy Discrimination Act of Title VII of the Civil Rights Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the Providing
9 29 CFR § 1636.3(d).
10 https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act, No. 14.
11 29 CFR § 1636.3(h).
12 29 CFR § 1636.3(h).
13 29 CFR § 1636.4(c).
14 29 CFR § 1636.4(d).
15 42 USC 2000gg-1; 29 CFR § 1636.4(a).
16 Id.
17 29 CFR § 1636.3(l).
18 29 CFR § 1636.3(i).
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