How Employers Could Get Into Trouble Under the PWFA

The Pregnant Workers Fairness Act (PWFA) dramatically expands the rights of employees affected by pregnancy, childbirth, and related medical conditions. This watershed legislation became effective June 27, 2023. The Equal Employment Opportunity Commission (EEOC) published final regulations April 15, 2024, and those regulations became effective June 18. So what are the key risks for employers?

Under the PWFA, employers with 15 or more employees must provide reasonable accommodations to qualified employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions unless employers can demonstrate undue hardship on the operation of their business. The underlying theme of the PWFA and the EEOC’s regulations is that employers should be willing to evaluate and grant accommodations to employees affected by pregnancy, childbirth, or related medical conditions in an expeditious and open-minded manner. Moreover, the law and regulations make it clear that the right to accommodation under the PWFA is broader than the Americans with Disabilities Act (ADA).

Another difference between the ADA and the PWFA is that the regulations include “predictable assessments,” which are four types of accommodations that should generally be approved without any documentation other than an employee’s self-confirmation. These accommodations are:

1. Allowing an employee to carry or keep water near and drink as needed;
2. Allowing an employee to take additional restroom breaks as needed;
3. Allowing an employee to sit or stand as needed; and
4. Allowing an employee to take breaks to eat and drink as needed.

A self-confirmation, as described in the regulation, is a simple statement from an employee that confirms a limitation or limitations from pregnancy, childbirth, or related medical conditions and that requests an adjustment or change at work because of it. The EEOC advises that an employee’s self-confirmation can be made in any form or manner — from verbal notification to a handwritten note or email — and physical evidence or documentation is not required to support it. Employers cannot require employees to make a self-confirmation in a specific format, use specific words, or use a specific form. If employers require medical documentation to support requests for ADA accommodation, they must ensure this principle is not automatically applied to PWFA-related accommodation requests. At a minimum, employers must make clear to employees that documentation (other than self-confirmation) is not required for the four predictable assessments.

Unnecessary Delays

EEOC regulations stress the importance of employers providing pregnancy-related accommodations expeditiously without requiring extensive and burdensome processes. The agency warns that unnecessary delays can be a violation of the PWFA even if employers ultimately provide the requested accommodations. In the regulations and interpretive guidance, the EEOC advises that many accommodations (including the four predictable assessments) should be granted immediately upon request after a brief discussion between a manager and the employee.

Factors the EEOC will consider when evaluating whether a delay was unnecessary include:

• Reason for the delay;
• Length of the delay;
• Length of time the accommodation is needed (if it is needed for a short period of time, an unnecessary delay can be more meaningful);
• How much the employee and employer, respectively, contributed to the delay;
• Whether the employer engaged in actions related to the accommodation during the delay (such as investigating practical issues related to providing the accommodation);
• Whether the employer delayed an accommodation deemed as a predictable assessment by the EEOC (and if so, that “will virtually always result in a finding of unnecessary delay”)¹; and
• Whether the employer offered interim accommodation(s) pending the ultimate decision.

The EEOC also cautions that employers can only request documentation to support an accommodation request when it is reasonable to do so, and even then, the documentation requested must itself be reasonable. The EEOC also advises that offering an interim accommodation, for example, pending receipt of reasonable documentation is best practice and that an interim accommodation should allow employees to continue working. The EEOC expressly states that leave will not be considered a reasonable interim accommodation unless employees ask for a leave.

What is “Overly Demanding” When It Comes to Documentation?

The PWFA does not provide specific examples when employers can seek medical documentation. In the final regulations, the EEOC notes that employers can require documentation only when it is reasonable under the circumstances to do so, and that the amount and nature of documentation requested must be reasonable. The agency also notes that when employees’ limitations and the accommodation requested are straightforward, employers should approve an accommodation after a single informational conversation or short email exchange. The most obvious examples are the predictable assessments, though it is not difficult to think of other situations when an employer’s request for medical documentation may be considered unreasonable, including these examples:

• An employee’s request for a larger uniform to accommodate her body, which is changing due to pregnancy;
• An employee’s request to temporarily move her desk or workstation closer to a restroom due to more frequent restroom breaks; and
• A request to not climb ladders from an employee who is seven months pregnant and is no longer feeling as solid on her feet.

If employers deny or fail to provide requested accommodations because documentation was not received or it is inadequate, that may be a violation of the PWFA if it was not reasonable to request documentation in the first place and/or the nature and amount of documentation requested is not reasonable.

The EEOC has allowed a broad range of healthcare providers to supply medical documentation, including, but not limited to, midwives and doulas. The EEOC also makes it clear that it is not reasonable or appropriate for employers to insist that documentation be provided by a particular treating healthcare provider, such as an OB-GYN.

Employers must ensure they do not use medical certification templates that were designed for ADA accommodation requests. The EEOC has stated that it can be a violation of the PWFA to use forms that are overly invasive and require employees to prove they have a disability under the ADA. Under PWFA regulations, “reasonable documentation” is the minimum amount needed to confirm there is a limitation arising from pregnancy, childbirth, or a related condition, and a description of the adjustment or change at work that is needed due to the limitation. The regulations also specify that employers may not require the submission of supporting documentation on a specific form.

Medical documentation forms created to evaluate ADA-related accommodation requests often include questions that are beyond the scope of the minimum information necessary to support a PWFA-related accommodation. Typically, ADA medical documentation forms require healthcare providers to certify that employees have a qualifying disability — a physical or mental impairment that interferes with a major life activity. Under the PWFA, employees do not have to prove they have a disability. They only have to show they have limitations arising from pregnancy, childbirth, or related medical conditions, including any of the following: a problem or impediment that is modest, minor, and/or episodic; a need or problem related to maintaining their health or the health of the pregnancy; and seeking healthcare related to pregnancy, childbirth, or related medical conditions.

Failing to Show Undue Hardship

Employers must be able to articulate and prove that a requested accommodation would cause undue hardship, and if there is litigation, the burden of proof is on employers to prove undue hardship. It is not sufficient to make a generalized conclusion of undue hardship. In fact, the EEOC specifies that employers must conduct an individualized assessment to demonstrate undue hardship for employees.

Proving undue hardship is a challenge for employers under the ADA, which allows employers to deny an accommodation if it would relieve an employee from performing an essential job function. Stakes are higher for employers under the PWFA. Under the PWFA, employers must grant reasonable accommodations for employees who are temporarily unable to perform one or more essential functions as long as they will be able to perform the function in the near future unless they can prove undue hardship. The regulations define “in the near future” as up to 40 weeks for accommodations related to a current pregnancy. For accommodations related to other conditions, “in the near future” must be determined on a case-by-case basis.

The EEOC also cautions that while prior accommodations granted to employees may be a factor in evaluating whether a requested accommodation would cause undue hardship, the mere fact that prior accommodations were granted is not proof of undue hardship, and anticipating future accommodations is also not an appropriate consideration for undue hardship. While employers may believe it is challenging to provide accommodations during a pregnancy, those challenges in and of themselves do not constitute an undue hardship.

Forcing Leave as an Accommodation

The PWFA makes it unlawful for employers to provide leave as an accommodation unless there is no other reasonable accommodation that can be provided without undue hardship that would allow the employee to keep working. The EEOC also advises that if employees request leave, employers must grant it as an accommodation absent undue hardship. The EEOC also indicates that leave is not an appropriate interim accommodation (unless the employee requests it) and that an interim accommodation should be one that allows the employee to continue working unless doing so would cause an undue hardship.

Imposing Accommodations

The PWFA makes it unlawful to require employees to accept an accommodation unless it was arrived at through the statutorily-required interactive process. This creates the potential for conflict with employees when employers want to offer an accommodation that is different from the one requested. The EEOC makes clear that employers must provide effective accommodations that meet employees’ needs or limitations. If there is more than one effective accommodation, the regulation notes that employers have discretion to choose which option is best, though they should give employees’ preference primary consideration.

Employers should be cautious when rejecting requested accommodations and offering alternatives. If employees and/or their healthcare providers can demonstrate that the alternative is not an effective accommodation, employers are at risk for violating the PWFA by imposing an accommodation that was not agreed to as part of the interactive process. Employers should discuss alternatives during an interactive process but should be thoughtful before forcing those alternatives, for example, if employees request remote work or telework as an accommodation and employers only offer on-site accommodation alternatives. One option is to put the question of effectiveness to the employee’s healthcare provider. If the healthcare provider agrees the accommodation alternative is effective, it would protect the employer from liability.

Failing to Adjust Performance Expectations

In its interpretive guidance, the EEOC advises that generally employers do not need to reduce production expectations as an accommodation under the PWFA. However, the EEOC also advises that if employees are granted extra breaks or leave under the PWFA, employers cannot penalize them for those accommodations, and employers must prorate production requirements to account for the period of leave or extra breaks. The EEOC also explains that if an accommodation removes an essential function and it negatively affects an employee’s ability to meet production requirements, employers may have to adjust requirements to avoid penalizing employees. For example, if an employee is relieved of lifting as an accommodation, the employer should not penalize the employee financially or otherwise if the amount of work that can be produced is affected by the accommodation. If bonuses are production-based and the only accommodation available is to temporarily suspend an essential function that affects production, the employer may be able to lawfully reduce an employee’s bonus but only if that is the employer’s standard practice in these situations.

Don’t Forget the FMLA and Other Statutorily Protected Leaves

Employers frequently ask how the PWFA interacts with the federal Family and Medical Leave Act (FMLA) and the ADA. Neither the PWFA nor the EEOC regulations directly address or resolve this question. So if an employee requests leave because of pregnancy, childbirth, or a related condition, determine whether the employee is eligible for FMLA leave or any statutory leave provision such as numerous state paid family and medical leave laws. If so, the leave should run under the FMLA (or another applicable leave statute) to ensure the employee’s annual FMLA leave allotment (or other statutory leave allotment) is appropriately decremented or decreased. If the employee is not eligible for FMLA leave and/or has exhausted FMLA leave, the request for leave as an accommodation must be examined under the PWFA lens and possibly an ADA lens. When it relates to approving leave (or other accommodations) under the ADA or PWFA, there is no duty to designate the leave, which is a sharp contrast with the FMLA’s strict notice and designation requirements. The focus with ADA and PWFA accommodation laws is whether the employer provided legally required accommodations, not whether an employer properly designated the leave or other accommodation to one law.

As we start to unravel PWFA requirements, bear in mind that this law provides additional protections and rights to employees compared with the FMLA or ADA. Congress acted to narrow a gap between federal laws because pregnant employees were slipping through it. The focus, according to EEOC representatives, is to ensure that employers help employees with limitations due to pregnancy, childbirth, or related conditions stay at work effectively. Viewing accommodation requests through this lens is a prudent compliance choice.

It is important for employers to understand what the PWFA requires and how the requirements may differ from the FMLA and the ADA. As lawsuits are filed and EEOC charges are levied and defended, the unique requirements and parameters of the PWFA will become clearer. In the meantime, employers are advised to exercise caution before denying requests and may want to consider a more magnanimous approach. If a lawsuit is brought, the judge, jury, or EEOC will in all likelihood be more sympathetic to an employee experiencing pregnancy, childbirth, or related conditions than to an employer.

DMEC-Related Resources

1. 2024 DMEC Annual Conference
2. Navigating the Complex Web of Pregnancy and Parental Leave Laws and Programs
3. Ready or Not: The PWFA is Now Law
4. Reasonable Accommodation Process Resources & Tools
5. FMLA/ADA Training for Supervisors and Managers