When the Pregnant Workers Fairness Act (PWFA) was last introduced to the U.S. House of Representatives, one of its backers called it “a common sense piece of legislation” that was designed “to help keep women in the workforce.”
The bill was eventually passed and took effect on June 27, 2023. Its protections are a very positive step towards helping women stay in their jobs in the face of pregnancy-related conditions. But HR pros attempting to comply with the law may not find it as straightforward as the politicians who passed it.
The PWFA joins the Americans with Disabilities Act (ADA) on the short list of laws that require employers to make workplace accommodations for qualifying individuals. Though the laws share this rare trait, they are by no means the same.
This blog will help you understand the fundamentals of both the ADA and the PWFA, the traits they share, and, most importantly, the elements that make the PWFA so distinct. Read on to find out how you can accommodate employees with pregnancy-related conditions effectively, compassionately, and compliantly.
Understanding the ADA
Let’s begin with a brief synopsis of the ADA. Passed in 1990, the law granted protections to people with disabilities. Title I of the ADA deals with employment.
What is the ADA?
The ADA requires employers to provide reasonable accommodations to employees with covered disabilities. Employers do not have to provide accommodations if they pose an “undue hardship” — an “action requiring significant difficulty or expense.” It’s worth noting that, most of the time, accommodations are inexpensive to provide and easy to implement.
Who does the ADA protect?
The ADA protects employees who have a disability. Generally, these disabilities are defined as physical or mental impairments that substantially limit one or more major life activities.
Who are covered employers under the ADA?
The ADA is a federal law that applies to private and public sector employers with 15 or more employees.
How does the ADA treat pregnancy?
The ADA does not consider pregnancy itself to be a disability. Medical conditions caused by pregnancy, however, can qualify as a disability under the ADA. The ADA obligates employers to accommodate pregnant workers who have conditions such as gestational diabetes, preeclampsia, and severe morning sickness.
If you’d like an ADA “cheat sheet”, you can read our reasonable accommodation checklist.
Understanding the PWFA
Now that you’re acquainted with the basics of the ADA, let’s move on to the PWFA.
What is the PWFA?
The PWFA is a new law that requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions.
Who does the PWFA protect?
The PWFA protects employees and applicants of “covered employers” who have known limitations related to pregnancy, childbirth or related medical conditions like postpartum depression, postpartum anxiety, lactation, mastitis, and more. The law protects full time, part time, temporary, and seasonal workers.
Who are covered employers under the PWFA?
The PWFA covers private and public sector employers with at least 15 employees. If you need help keeping track of the new requirements the PWFA entails, see AbsenceSoft’s quick reference guide for HR.
5 Key Differences Between the ADA and the PWFA
Now that you understand the basics of these laws, let’s discuss five key differences between them.
1. Minor Conditions Count
For a pregnant worker to qualify for an accommodation under the ADA, they need to show that they have a condition that meets the law’s definition of disability. The PWFA lowers that standard.
The PWFA obligates employers to provide accommodations to employees with “pregnancy-related conditions.” The law’s interpretation of this term is wide ranging. It includes:
- Current, past, and potential pregnancy
- Lactation (including breastfeeding and pumping)
- Use of contraception
- Menstruation
- Infertility and fertility treatments, endometriosis
- Miscarriage, stillbirth, or having or choosing not to have an abortion
- Existing conditions exacerbated by pregnancy
These conditions do not need to meet a specific severity threshold. Employees can request accommodations for physical or mental conditions that are minor or episodic.
2. Essential Job Functions are Less Essential
Under the PWFA, an employee or applicant can be qualified for a role even if they cannot perform one or more essential functions of the job.
This represents a significant departure from the logic of the ADA. To be protected by the ADA, an individual with a disability must be able to perform the essential functions of a job “with or without reasonable accommodation.”
The PWFA states that, despite being unable to perform an essential job function, an employee or applicant is qualified for a role, especially if:
- The inability to perform the essential function(s) is temporary. (Temporary is defined here as lasting for a limited time but beyond the near future; generally, 40 weeks.)
- The employee could perform the essential function(s) “in the near future.”
- The inability to perform the essential function(s) can be reasonably accommodated.
3. The Interactive Process Should be Simple and Swift
The PWFA also treats the interactive process differently than the ADA, though it’s an important element under both acts. The U.S. Equal Employment Opportunity Commission — the agency that enforces these laws — holds that the ADA requires employers to engage in the interactive process.
EEOC upheld this viewpoint in a recent lawsuit. An employee was hired by a medical clinic. The agency charged a medical clinic with discrimination, saying it fired an employee just after she disclosed a vision impairment and requested an accommodation. “An employer must engage in the interactive process when an employee raises issues of reasonable accommodation,” said Debra Lawrence, regional attorney for the EEOC’s Philadelphia District Office.
The interactive process is just as important under the PWFA, but the newer law views it somewhat differently. The interactive process must be speedy. The process should feature “simple exchanges of information between employees and employers.”
The interactive process under the PWFA can be triggered by short conversations with direct supervisors, as opposed to a form or other process. Once the process is underway, employers must respond to requests with “expediency.”
4. Documentation is Often a “No-Go”
Both the PWFA and the ADA say that employers should not ask for documentation when an employee’s disability and need for accommodation are obvious. But the PWFA outlines several additional situations where documentation is not necessary:
- When the employer already has sufficient information to support a known limitation related to pregnancy.
- When the request is for a lactation accommodation.
- When the accommodation is available without documentation for other employees seeking the same accommodation for non-PWFA reasons.
5. Certain Requests are an Automatic Yes
There’s another scenario where employers should proceed with an accommodation without documentation: when the request is for one of four identified reasonable accommodations.
In its final rule, EEOC identified four accommodations that employers should grant in virtually all situations. These “predictable assessments” allow employees to:
- Carry or keep water and drink in or nearby the employee’s work area.
- Take additional restroom breaks.
- Sit or stand when necessary.
- Take breaks to eat and drink.
How Can HR Stay Compliant?
The PWFA presents HR practitioners with a lot to learn. To stay compliant, HR can adapt to accommodating workers with pregnancy-related conditions by taking a few deliberate steps.
Adjust your policies and procedures
Take time to thoroughly review your existing policies and make adjustments. Examine your processes to make sure they account for the differences described above.
Train your supervisors
It is very likely that accommodation requests will go to your front-line managers and supervisors. Managers should be thoroughly trained about how to respond, including how to avoid retaliating against those who request or use a job accommodation.
Review existing job descriptions
Identify each position’s essential functions to determine if they can be temporarily adjusted or amended (for up to 40 weeks) for a pregnant employee in need of a job accommodation. Consider documenting which functions are essential in job descriptions.
How Technology Helps
If you’re overwhelmed by the PWFA, technology can help. Systems like AbsenceSoft are updated by in-house legal experts to ensure compliance with new laws and regulations at the state and federal level.
In addition to helping your organization stay compliant, a purpose-built accommodations platform will streamline your team’s workflow. It allows employees to submit accommodations requests online. Even if an employee makes a request verbally, the platform standardizes the rest of the interactive process to ensure both equity and a personalized experience for each employee.
The platform’s use of intelligent automation boosts the expediency of the interactive process — whether you’re working toward an accommodation under the ADA, the PWFA, state law, company policy, or all of the above. The system sends reminders to HR and other stakeholders so employee requests are attended to and acted on quickly. And it stores cases, notes, and medical documentation centrally so that they are accessible to your whole team.
To learn more about how AbsenceSoft can help you accommodate pregnant workers in today’s legal landscape, schedule a demo today.