Jim Jantz, JD
Director of Compliance – Absence, Disability, & Life
On April 19, the Equal Employment Opportunity Commission (EEOC) published final regulations for the Pregnant Workers Fairness Act (PWFA). Many have been eager to see these final regulations since PWFA went into effect in June 2023. More importantly, this has sparked a year of conversations about how the act may impact the workplace and what employers need to consider.
One of the most common questions is how PWFA and the Americans with Disabilities Act (ADA) compare. Let’s start by defining each:
PWFA: Requires covered employers to provide reasonable accommodations for an applicant’s or employee’s known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation would cause the employer undue hardship.
ADA: Prohibits discrimination against individuals with disabilities in various areas of life. Title I of the ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities, except when such accommodations would cause undue hardship.
There are a few similarities between the two laws:
- Both require employers with 15 or more employees to comply.
- Both require employers to provide reasonable accommodations in certain situations.
- Both advise that each situation be evaluated on a case-by-case basis. Employers need to analyze the individual circumstances of each request to determine whether and how to provide accommodation(s).
- Both, and specifically under the PWFA, state that employers should consider other reasonable accommodation options before exploring leave of absence as an accommodation.
- Both state that leave of absence may be a reasonable accommodation, including reduced schedules or intermittent leave.
- Both define “undue hardship” in a similar way.
In many cases, a pregnant applicant or employee may be covered by both the ADA and PWFA, but that is not always the case. This brings us to some key differences between the PWFA and ADA:
1. Who is eligible?
PWFA: Protects all employees (or applicants) who work for a covered employer and have known limitations related to pregnancy, childbirth, or related medical conditions.
ADA: Protects qualified individuals with disabilities, defined as any person who has a physical or mental impairment that substantially limits major life activities, has a record of such an impairment, or is regarded as having such an impairment.
2. Must the eligible employee be able to perform essential job functions for an accommodation to be provided?
PWFA: Not necessarily. In limited situations, an employee may be eligible for accommodation even if unable to perform essential functions. Three requirements apply:
- The inability to perform essential functions must be temporary.
- Essential functions can be performed in the near future.
- The inability to perform essential functions can be reasonably accommodated.
The PWFA defines “temporary” as “lasting for a limited time, not permanent,” and “near future” as within 40 weeks, the typical duration of pregnancy. View the EEOC summary of the key provisions in its final PWFA rule.
ADA: Yes. Under the ADA, the employee must be able to perform the essential functions of the position. Employers are not required to eliminate or remove essential functions as part of accommodation.
3. What types of medical conditions or disabilities must be accommodated?
PWFA: Covers known limitations related to pregnancy, childbirth, or related medical conditions. The condition does not need to meet the level of a disability. Pregnancy itself is covered. The PWFA broadly defines these terms and may include infertility, fertility treatment, contraception use, termination of pregnancy, and other pregnancy-related issues. It also covers some conditions not unique to pregnancy or childbirth, such as migraine headaches, nausea, or vomiting.
ADA: Covers individuals with disabilities—a broader category than PWFA but more limited regarding pregnancy. Pregnancy itself is not considered a disability under the ADA unless accompanied by related conditions that meet the disability definition.
4. Can an employer require medical documentation before providing an accommodation?
PWFA: The PWFA suggests many situations where employers should review and provide an accommodation without requiring medical documentation. Certification may only be required if it is reasonable for the employer to determine whether to grant the accommodation.
The PWFA introduces the concept of employee self-confirmation, meaning the employee’s statement about limitations and accommodations is all that is required in some cases. Requesting documentation is not reasonable if the limitation and need for accommodation are obvious, such as:
- When the employee has provided sufficient information
- When the employee is pregnant and requests any of the four common types of accommodation (see below)
- When the limitation relates to lactation or pumping
ADA: Employers may request medical certification only when the disability or need for accommodation is not known or obvious. If the disability and need are obvious, employers should proceed to identify potential accommodations.
5. What types of accommodations must be provided?
PWFA: Each situation must be reviewed case-by-case, but four common requests should be processed quickly without medical documentation and with a limited interactive process:
- Carrying and drinking water
- Additional restroom breaks
- Sitting or standing changes
- Breaks to eat or drink as needed
The PWFA also provides a non-exhaustive list of potential accommodations, including job restructuring, modified schedules, more frequent breaks, use of paid or unpaid leave, light duty, telework, and more. It generally covers lactation and pumping-related requests, which are not typically covered under the ADA.
ADA: The EEOC has provided a similar list of accommodations under the ADA.
6. Can the employer provide alternative options for the accommodation without the employee’s consent?
PWFA: No. The PWFA requires collaboration through an interactive process and does not allow employers to unilaterally choose accommodations.
ADA: The ADA also encourages an interactive process but allows employers to provide alternative accommodations if effective, even if different from the employee’s request.
7. Can the employer require leave as an accommodation?
PWFA: No. Employers cannot require leave as an accommodation if the employee seeks a reasonable at-work accommodation that is available.
ADA: This is considered a best practice but is not a requirement.
As employers adjust processes to align with PWFA requirements, here are some steps to help prepare before the final regulations take effect on June 18, 2024:
- Review your existing accommodations policy and related procedures to ensure compliance with PWFA, or consider drafting a separate PWFA policy.
- Train managers and HR staff to recognize accommodation requests under PWFA and understand the broadened requirements.
- For more information, see the EEOC’s summary of PWFA. The EEOC released proposed PWFA regulations previously and published the final regulations on April 19, 2024. They will take effect 60 days later, on June 18, 2024.
Employers should also be aware of other laws protecting pregnant employees, including the ADA, the Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act), and various state and local laws requiring accommodations or other protections.
This information is provided for informational purposes only and should not be considered legal advice.
