Employer PWFA Compliance Requirements

About The PWFA

The Pregnant Workers Fairness Act (PWFA) mandates reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions.

This law requires employers grant pregnant workers reasonable accommodations - temporary job changes needed to maintain a healthy pregnancy and, in some situations, to help an employee recover from or deal with post-pregnancy related medical conditions - unless doing so would impose an undue hardship.

Though the PWFA has some similarities to the ADA, there are many distinct differences. For instance:

• A person other than an employee could be covered under the PWFA
• Employers can be liable for PWFA violations if a supervisor mishandles a pregnancy accommodation request
• Entities other than the "qualified individual" may make accommodation requests on behalf of the pregnant worker
• To properly administer the PWFA, employers must understand the key concept of "known limitation" and what physical and mental conditions could be involved
• Which laws – the FMLA, ADA, or PWFA – take precedence
• Employers may not require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process
• The restrictions on employers seeking supporting medical documentation

Key Components Of PWFA Plan Administration

• Who's covered - it is not just employees!
• Various prohibitions, such as denying employment opportunities, failing to make reasonable accommodations, and requiring a written request for an accommodations
• Understanding that applicants are included in the statutory definition of "qualified employees"
• What qualifies as an "essential function"
• Who can request a reasonable accommodation - it's not just the employee!
• How to use the "Interactive Process"
• Utilizing "Interim Accommodations"
• The rules for "Spousal Rights"
• A multitude of documentation rules
• Determining what takes precedence when PWFA contrasts with FMLA, ADA, and other laws

Excerpts From Our PWFA Training & Certification Program

The following are four of the many recommendations from our PWFA Training & Certification Program that help address some of the concerns mentioned above:

Excerpt #1: Managers And Supervisors

It is important to understand which people and entities are considered the "employer" because the regulatory definition is broad enough to include managers and supervisors of the employer.

Under the law of principal and agent, the principal (employer) is responsible for the actions (or inactions) of its agents. If an agent violates the law, the principal is most likely liable, as well.

While supervisors and managers cannot be held individually liable under the PWFA, their actions on behalf of the employer can create liability for the employer. These are the people who are often the first to know about a worker's pregnancy-related limitation and request for reasonable accommodation.

Since the regulatory definition is broad enough to include managers and supervisors, this means the employer can be liable for PWFA violations if a supervisor mishandles a pregnancy accommodation request.

Excerpt #2: Qualified Employees

Similar to the ADA, the PWFA protects "qualified employees". However, the PWFA expands what that term means beyond the ADA definition. Specifically, under the PWFA, applicants are included in the statutory definition of "qualified employees".

The PWFA provides two avenues through which an employee or applicant can become a qualified employee.

First, as under the ADA, a "qualified employee" is able to perform the essential functions of their role with or without a reasonable accommodation.

Second, in a substantial departure from the ADA, the PWFA expanded the definition of a qualified employee to also include workers who are:

• Unable to perform an essential function of their role for a temporary period of time;
• Able to perform that essential function in the near future; and
• Able to be reasonably accommodated by the employer for their inability to perform essential functions

The statutory language of the PWFA does not specifically define "temporary" or "in the near future". However, the regulations do provide guidance on these terms, which will be covered in detail in the following pages.

Excerpt #3: PWFA Interactive Process

Employers should respond promptly to requests for accommodation. When the limitation and accommodation are straightforward, as they often are with pregnancy, the interactive process can be a single informal conversation or short email exchange.

If either the limitation or the accommodation is not clear from the initial accommodation request, the interactive process is an informal, flexible, interactive dialogue that should serve to quickly provide the needed information. Because each pregnancy is different, the process should be highly individualized.

If an employer cannot determine the appropriate reasonable accommodation or the known limitation through the initial reasonable accommodation request or a simple conversation or email exchange, the flexible interactive process may continue, perhaps involving medical or vocational experts.

Some questions to consider are:

• What limitations is the employee experiencing?
• How do these limitations affect the employee and the employee's job performance?
• What specific job tasks are problematic as a result of these limitations?
• What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
• Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
• Do supervisory personnel and employees need training?

Excerpt #4: Who Can Request A Reasonable Accommodation?

While most PWFA accommodation requests will come from the employee directly, the law recognizes that sometimes other people may make those requests on behalf of the pregnant worker. The employee's representative for PWFA purposes can be a:

• Family member
• Friend
• Union representative
• Health care provider
• Other representative (e.g., roommate)

Note that, as under the ADA, to request accommodation, an individual may use plain language and need not mention the PWFA or use the phrase "reasonable accommodation".

About The Certified Administrator Designation

Individuals can earn a "Certified Administrator" designation by completing a Training & Certification Program, then passing the accompanying exam. Benefits include:

• Consistent and standardized training from a trusted third-party
• Free updates whenever the laws change
• Recognition through "Certified Administrator" certification

More Details: Become A Certified Administrator!