In many cases, a pregnant applicant or employee can be covered by the ADA and PWFA, but that is not always the case. Which brings us to …
Key differences between the PWFA and ADA:
- Who is eligible?
PWFA: The 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: The ADA protects qualified individuals with disabilities, which is 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.
- Should the eligible employee be able to handle their essential job function for an accommodation to be instituted?
PWFA: Not necessarily. In limited situations under the PWFA, an employee may be eligible for accommodation even when they are unable to perform the essential functions. There are three requirements in this situation:
a. inability to perform the essential functions must be temporary
b. essential functions can be performed in the near future
c. the inability to perform the essential functions can be reasonably accommodated
The PWFA provides additional information and definitions regarding those terms. For example, temporary is defined as “lasting for a limited time, not permanent,” and the near future refers to a time period within 40 weeks, the typical duration of a pregnancy.
ADA: Yes. Under the ADA, the employee must be able to perform the essential functions of the position. An employer is not required to eliminate or remove essential functions as part of the accommodation.
- What types of medical conditions or disabilities must be accommodated?
PWFA: The PWFA protects those with known limitations related to pregnancy, childbirth, or related medical conditions. The condition does not need to rise to the level of disability. Instead, pregnancy itself is covered. These terms are broadly defined in the PWFA and may include infertility and fertility treatment, use of contraception, termination of pregnancy, and many other pregnancy-related issues. PWFA also covers several conditions that are not unique to pregnancy or childbirth, such as migraine headaches, nausea or vomiting, and others.
ADA: The ADA covers individuals with disabilities – a significantly broader category than PWFA but more limited in scope when it comes to pregnancy and pregnancy-related conditions. Under the ADA, pregnancy itself is not considered a disability and is not covered unless there are additional related conditions that rise to the level of a disability.
- Can an employer require medical documentation before providing an accommodation?
PWFA: The PWFA proposes that there are many situations in which an employer should review and provide an accommodation without requiring medical documentation. Thus, an employer may only require certification if it is reasonable for the employer to determine whether to grant the accommodation. The PWFA also introduces the concept of the employee’s self-confirmation. This means the employee’s statement about limitations and accommodations is all that is required in some cases, and requesting documentation is not reasonable. It would also not be reasonable if the limitation and need for accommodation is obvious, which could be:
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- when the employee has provided sufficient information,
- when the employee is pregnant and requests any of the four common types (see below),
- or when the limitation is lactation or pumping.
ADA: Under the ADA, employers may only ask for medical certification when the disability and/or need for accommodation is not known or obvious. If the disability and need for accommodation are obvious, such that the employer knows of the disability without the employee mentioning it or asking for an accommodation, an employer should move to the next step of identifying potential accommodation(s).
- What types of accommodations must be provided?
PWFA: Each situation must be reviewed on a case-by-case basis, similar to the ADA, but four requests should be processed quickly without medical documentation and with a limited interactive process:
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- carrying and drinking water
- additional restroom breaks
- sitting or standing changes
- breaks to eat or drink, as needed
In addition, the PWFA provides a non-exhaustive list of potential accommodations, including job restructuring, modified schedules, more frequent breaks, permitting the use of paid leave or providing unpaid leave, light duty, telework, and more.
It is also important to note that the PWFA will generally cover requests related to lactation and pumping, which are not typically covered under the ADA.
ADA: The EEOC has provided a similar list under the ADA.
- Can the employer provide alternative options for the accommodation without the employee’s consent?
PWFA: No. The PWFA does not allow an employer to choose an accommodation but requires collaboration through an interactive process.
ADA: Yes. The ADA also typically uses the interactive process but allows the employer to choose to provide an alternative accommodation rather than the employee’s requested accommodation as long as it is effective.
- Can the employer require leave as an accommodation?
PWFA: The PWFA prohibits an employer from requiring an employee to take a leave of absence as an accommodation if the employee is seeking an at-work accommodation (and such accommodation is reasonable and available).
ADA: This is a best practice under ADA but not a requirement.
